For claims or PE actions decided at the initial or reconsideration level, the date of the award notice to the claimant is the controlling date. Therefore, if the file shows the claimant or representative submits a fee agreement before we issue the award notice, we must process the fee agreement. This includes when a field office (FO) receives a fee agreement after making the necessary systems inputs to pay the claim, but before issuing the award notice, see GN 03940.010C.

For claims or PE actions decided by the Office of Hearings Operations (OHO) or the Appeals Council, the date of the notice of the favorable hearing or Appeals Council decision is controlling.

However, the "date we make a favorable decision" does not determine the period of past-due benefits (see GN 03920.030, Representative’s Fee – Title II Past-Due Benefits and GN 03920.031, Representative’s Fee - Title XVI Past-Due Benefits).

The claimant or representative must submit the fee agreement to us before the date of the first favorable determination or decision (hereinafter, we generally refer to both as a “decision”) that the representative worked toward achieving, as explained in GN 03940.001B.

We use the date of the award or decision notice, not the date of adjudication or effectuation. In concurrent claims, the date of the first favorable decision under either title is controlling.

If we receive more than one fee agreement, we act on the latest fee agreement received before the favorable decision date. We cannot consider a fee agreement that was received after the favorable decision, even if the claimant and the representative(s) signed the agreement prior to the favorable decision.

NOTE: Parties cannot submit a new fee agreement in lieu of an appointment, withdrawal, or revocation of a representative’s appointment. The claimant or representative must submit a new Form SSA-1696 (Claimant’s Appointment of a Representative) to appoint a new representative and the claimant or representative must submit a separate writing to revoke or withdraw an appointment.

The claimant, the claimant’s legal guardian, the parent of a child under the age of 18, or the representative must submit a fee agreement in writing. The parties may submit a fee agreement in person, via mail, fax, or other approved electronic method (see GN 03940.001C). The parties may also submit a photocopy or fax of the original fee agreement. The agreement is only valid if all parties, including the claimant and all appointed representatives who have not waived the right to a fee, sign the same agreement.

• •

  A court appointed representative, a parent or legal guardian of a child under age 18, or the court-ordered legal guardian of a claimant judged legally incompetent (refer to GN 00502.139 for more information when a guardian is involved) may sign the fee agreement on behalf of the claimant.

• •

  A claimant under age 18 may sign the fee agreement if we determine that individual capable of managing their own benefits. For information on developing capability for children, see GN 00502.070.

• •

  Unless we have reason to doubt the representative’s intent to sign the fee agreement, we can accept a representative’s stamped signature on the fee agreement. However, we cannot accept a fee agreement with only the stamp or name of an entity, rather than of an individual(s). While we may make direct payment of a fee to an entity with a valid assignment (see GN 03920.021), we do not recognize firms, corporations, or other entities as representatives. The fee agreement must show the name(s) and signature(s) of each individual representative who is party to the fee agreement.

• •

  We may contact the parties for clarification if the signatures are illegible or questionable.

• •

  The fee agreement may be signed by multiple individuals as long as the claimant appointed at least one of them; however, we will only recognize and authorize a fee to the individual(s) who are, or were previously, properly appointed representative(s). We will not include in our fee considerations any individual who signed the fee agreement but who was not appointed.

The fee requested in the fee agreement cannot exceed the lesser of 25 percent of the past-due benefits or the fee limit set by the Commissioner under the authority provided by section of the Act 206(a)(2)(A)(ii)(II). The current limit is $9,200.

The fee limit also applies to concurrent claims with a common issue. We cannot approve a fee greater than 25 percent of the combined Titles II and XVI past-due benefit amounts or $9,200 (or other statutory fee limit in effect). See GN 03920.031B for calculation of past-due benefits for representative fee purposes in Title XVI only and concurrent claims and GN 03920.030B.4. for Title II only claims.

We accept language in a fee agreement that permits a later increase in the statutory fee limit in effect, or “fee cap,” as of the day we approve the fee agreement. For additional information about increases to the fee cap and examples, refer to GN 03920.006. We also accept language that sets the percent or fee limit at an amount lower than the fee cap. However, we will not accept language that establishes a minimum fee amount that may result in a fee of more than 25 percent of the past-due benefits.

To approve a fee agreement, the agency’s decision in the underlying claim must be fully or partially favorable. This can be a favorable decision on a claim or a post-entitlement or post-eligibility (PE) action that establishes additional eligibility or entitlement. See GN 03940.001B.5 for more information.

We still approve a fee agreement even if our decision is favorable to the claimant under only one title in a concurrent claim, so long as the agreement meets all other statutory conditions and no exceptions apply.

We must only approve a fee agreement when the favorable decision results in past-due benefits. If we initially approved a fee agreement on the condition that there were past due benefits, but at the time we effectuate the favorable decision, we find that there are no past-due benefits, we cannot process the fee agreement approval. In these situations, we must notify the representative(s) and the claimant that the representative(s) must file a fee petition in order to charge and collect a fee. For notice language, refer to NL 00720.050.

The fee agreement process applies only to claims of entitlement to or eligibility for past-due benefits, including claims for initial entitlement or eligibility, PE actions that involve new entitlement or eligibility for additional benefits (such as a disability cessation appeal), and reopenings after termination.

We must disapprove fee agreements where the entitlement or eligibility has already been established, such as PE actions that only adjust benefit amounts or remove payment suspensions from benefits (e.g., changes in workers’ compensation offset, resolution of earnings discrepancies, increased payments from work ending while disabled), even though the decisions may result in additional past-due benefits.

We do not consider representative’s hours and services when deciding whether to approve or disapprove the fee agreement.

We do not consider agreements or other arrangements between the claimant and the representative that are unrelated to the authorized fee. Some examples include:

• •

  Agreements for the payment of out-of-pocket expenses (e.g., costs involved in obtaining copies of medical reports or paying state sales tax). Reasonable out-of-pocket expenses are not subject to our review. For more information on fees not subject to our review, see GN 03920.010.

• •

  Agreements that a third party will pay the representative part of the authorized fee.

  NOTE: The representative cannot charge or receive a total fee for services provided on the claim(s) that exceeds the statutory fee limits or the amount we authorized, even if the fee is being paid in part by the claimant and in part by a third party. A representative must submit a statement of the fee expected from a third party as part of, or in addition to the fee agreement if the representative is eligible for and requesting direct payment. 

• •

  The right to charge interest on the unpaid balance of the authorized fee.

• •

  A plan to share the authorized fee with another person who referred the case.

There is a statutory right to request administrative review of the amount set as the maximum fee. Therefore, we do not consider language in the agreement concerning administrative review. We explain administrative review rights in our fee determination notice.

The death of the claimant, whether before or after we issue a favorable decision, does not affect our review of the fee agreement.

Additionally, after we issue a favorable decision, we do not consider the death of the representative in deciding whether to approve or disapprove a fee agreement. The decision maker notifies the deceased representative’s executor or estate administrator of the fee agreement approval, redacting any personally identifiable information (PII) related to the claimant. However, if the deceased representative has validly assigned direct payment of an authorized fee to an entity, it is not necessary to notify the deceased’s estate of the fee agreement determination. See GN 03920.021 for general information about assignment.

For fee payment in either situation, refer to GN 03940.009.

If the representative dies before the favorable decision, refer to GN 03940.003 D.6 in this section.

The decision maker must disapprove a fee agreement if the claimant appoints more than one representative and all representatives who did not waive their fee did not sign a single fee agreement. This requirement applies even when all representatives have validly assigned direct payment of their authorized fee to the same, or a different, entity.

We define a “single fee agreement” as one document signed by all parties regardless of whether the representatives work for the same or different entities or for themselves. Therefore, if the claimant appoints another representative after submitting a fee agreement, this additional representative must sign onto the original agreement, or the parties must submit a new agreement signed by all.

NOTE: The decision maker can approve the fee agreement if the representative(s) who did not sign the fee agreement waived charging and collecting a fee and the agreement meets all other conditions for approval.

References:

• •

  GN 3920.020 Waiver of Fee or of Direct Payment of Representative's Fee

• •

  GN 3920.050 Releasing Withheld Funds for Representatives’ Fees

A two-tier fee agreement functions as a fee agreement through a prescribed level, usually the first hearing. The decision maker can approve a two-tier fee agreement only if the level at which we make a favorable decision is within the confines of the fee agreement. For instructions on processing two-tier fee agreements, see GN 03940.005. If the claimant did not receive a favorable decision at the indicated level but receives a favorable decision at a subsequent level of review, the representative must submit a fee petition at the end of the representative's service.

If the claimant revokes the appointment of a representative or the representative withdraws before we decide the claim, there are multiple appointed representatives who signed a single fee agreement, and one or more remain appointed on the claim, the decision maker must approve the fee agreement so long as the agreement meets all the other conditions for approval and no other exception applies.

The decision maker must disapprove the fee agreement if the claimant discharges all representatives who had signed the fee agreement or all such representatives withdraw before we favorably decide the claim. We do not send a copy of the award notice or other claim(s)-related information to a former representative unless it is the minimum amount of information necessary to resolve fee-related issues.

The fee authorizer must disapprove a fee agreement if a state court declared the claimant legally incompetent prior to the date they signed the fee agreement and the claimant's legal guardian did not sign the fee agreement.

The fee authorizer must not disapprove a fee agreement only because the claimant is mentally incapable of managing funds and requires a representative payee, or because we are evaluating the claimant's mental capability.

References:

• •

  GN 03940.037 Title II - FO and PC Processing of Fee Agreements on Claims Involving Mental Capability - General

• •

  GN 03940.051 Field Office Processing of Fee Agreements on Title XVI or Concurrent Titles II and XVI Claims Involving Mental Capability

The decision maker must disapprove the fee agreement for a suspended or disqualified representative if we favorably decide the claim after the effective date of the individual’s suspension or disqualification.

The decision maker must disapprove the fee agreement even if the representative had assigned direct payment of a fee to an entity. A sanctioned or disqualified individual is ineligible to receive direct payment, so any assignments they may have made also become invalid (see GN 03920.021).

For more information on processing claims with suspended or disqualified representatives, see GN 03970.060.

When a representative dies before we issue a favorable decision, the claimant or representative submitted an otherwise valid fee agreement, and there are no remaining representatives appointed on the claim(s) who had signed the same fee agreement, the decision maker must:

• •

  Disapprove the fee agreement at the time of the decision, and

• •

  Notify the parties, including the deceased's estate or the entity's point of contact (POC) if there is a valid assignment, (redacting PII, as necessary), that we disapproved the agreement, but that the individual addressed may request a fee for the deceased representative’s services by filing a fee petition (see GN 03930.020A).

In a multiple representative situation, if a representative dies but another representative(s) who signed the same fee agreement remains active on the claim, the decision maker must approve an otherwise valid fee agreement.

To obtain our approval to charge and collect a fee under the fee agreement process in a claim resulting in more than one favorable decision, the representative or the claimant must have filed the agreement with us before the date of the first favorable decision we made after the representative's involvement began. We can only approve one fee agreement in the claim. If the fee agreement is approved, we cannot authorize another fee based on a fee petition as the two processes are mutually exclusive.

• •

  We consider the representative appointed on a claim as of the date the claimant signed and dated the Form SSA 1696 (Claimant's Appointment of a Representative), or if the form is not dated, as of the day we receive the completed Form SSA-1696 that is signed by both the claimant and representative.

• •

  Unless the representative or the claimant files the fee agreement before the date of the first favorable decision made after the representative's appointment, we presume the representative will either waive a fee or use the fee petition process to obtain our approval to charge and collect a fee.

• •

  If the representative or claimant does not file a fee agreement before we make a favorable decision on a claim where the representative is appointed, but files a fee agreement before we make a revised favorable decision on appeal, the decision maker will disapprove the fee agreement.

For purposes of calculating a fee under an approved fee agreement in claims involving more than one favorable decision, "past-due benefits" are those additional benefits resulting from the favorable decision we made after the representative was appointed on the claim. Refer to GN 03920.030, Representative’s Fee – Title II Past-Due Benefits, and GN 03920.031, Representative’s Fee - Title XVI Past-Due Benefits.

If the representative wants to charge more than the fee cap for any reason (e.g., because of the additional work anticipated on the appeal), the representative must file a request for administrative review of the fee amount within 15 days after the representative receives the award notice. The claimant may also request administrative review within 15 days of receiving the notice and ask us to decrease the fee amount. If no party timely requests administrative review, we will not review the fee authorization unless the requester establishes good cause for late filing.

If the representative requests administrative review, the representative should explain their reasoning. E.g., if the fee agreement contains the following terms: "If additional benefits are payable as a result of our appealing the ALJ's partially favorable decision, I intend to seek approval to charge a fee greater than the specified maximum dollar amount established by the Commissioner pursuant to section 206(a)(2)(A) of the Social Security Act. At the conclusion of the case, I will identify the amount I want to charge, the amount previously authorized, the services performed for the claimant (and any auxiliary beneficiary) and the time spent on each type of service."

If the representative timely files a request for administrative review:

• •

  The representative may receive direct payment of the fee authorized under the approved agreement before a final decision is made on the request for administrative review.

• •

  We will delay action on the request until the appeal of the partially favorable decision is closed.

The component that takes the last administrative action on the appeal will send the request for administrative review to the SSA official authorized to conduct the administrative review. See GN 03960.005, Responsibility for Conducting Administrative Review Under the Fee Agreement Process – Jurisdiction.

The reviewing official will:

• •

  Notify the representative where to send a statement of time and services to support the administrative review request, and

• •

  Give the claimant and any other parties to the claim 15 days to comment on the representative's submission in support of the request for administrative review. Refer to GN 03960.040C. for policy on reviewing the fee amount.

• •

  See GN 03960.010B.10., for an explanation of the limited circumstances when another individual may file the administrative review request on behalf of the claimant.

If, on appeal, the decision is more favorable to the claimant and additional past-due benefits result, we will issue an amended notice of award and fee authorization indicating a new fee amount. Therefore, the representative does not need to request administrative review to obtain a greater fee, of up to the maximum specified dollar amount of the fee cap based on any additional past-due benefits.

If the representative wants to charge more than the maximum specified dollar amount of the fee cap for any reason, the representative must file a request for administrative review of the amount of the fee within 15 days after receiving the amended notice. Also, within 15 days of receiving notice of the fee amount the claimant or decision maker may ask us to decrease the fee. See GN 03960.005, Responsibility for Conducting Administrative Review Under the Fee Agreement Process - Jurisdiction.

If the AC vacates the ALJ's favorable decision and remands the case, the ALJ's approval of the fee agreement and any authorization of fees under the agreement are vacated as well because there is no favorable decision.

In the two-tiered fee agreement situation described above, the representative agreed to represent the claimant on a contingency basis if the claim went beyond the first ALJ level, with the fee premised on a percentage of past-due benefits, only if we favorably decide the claim.

If the AC issues a fully favorable decision without vacating the favorable aspect of the ALJ's decision, the fee agreement the ALJ approved may remain in effect unless the terms of the fee agreement limit its application to the hearing level or there is another change in pertinent circumstances (see GN 03940.004). Refer also to GN 03940.005B for more information on two-tiered fee agreements when there is a fully favorable AC decision. If a party requested administrative review of the fee resulting from the ALJ's decision, or requests administrative review of the fee resulting from the AC's decision, refer to GN 03960.005, to determine who has the responsibility to conduct the administrative review.

If the AC vacates and reverses the ALJ's partially favorable decision by issuing a wholly unfavorable decision, the ALJ's approval of the fee agreement is no longer in effect. This disapproval is necessary because one of the criteria for fee agreement approval (i.e., a favorable decision) is not met. Because the representative is representing the claimant on a contingency basis, with the fee premised on a percentage of past-due benefits only if successful, the representative is not entitled to a fee and the representative or entity if we made direct payment to the entity, must return any previously paid amount to us if the unfavorable decision becomes the final decision of the Commissioner. See GN 03920.051 and GN 03920.052 for instructions related to excess representative fee payments to an individual representative or an entity.

In a Title XVI only claim, "past-due benefits" are the total amount of Federal and Federally administered State payments due under a favorable decision but not yet paid through the month of effectuation (GN 03920.030D. defines "month of effectuation"), including any amounts sent to a State/subdivision under an interim assistance reimbursement (IAR) agreement, minus any benefits listed in GN 03920.031C. Refer to GN 03940.052 for guidance on processing fee agreements in Title XVI couples cases.

The past-due benefits amount in the Title XVI portion of concurrent claims is the same as the amount in Title XVI only claims, except for the purposes of calculating fees for representation. We reduce the Title XVI past-due benefits for windfall offset for the same period, regardless of whether the actual offset, as provided under § 1127 of the Social Security Act (the Act), reduces the Title II or Title XVI benefits. See GN 02610.053 for an explanation of offset and representative's fees. GN 03940.050B., explains how to calculate Title XVI past-due benefits in concurrent cases. Also, see GN 03920.031B., Policy — Title XVI Past-Due Benefits.

We calculate past-due benefits and authorize a fee under the fee agreement process using the beginning and ending periods shown in the partially favorable decision. If on appeal we make a more favorable or less favorable decision, we will adjust the past-due benefits, which may affect the amount of the fee under the fee agreement process.

In the above situation, we will continue processing the representative's fee under the fee agreement process only if adjudication results in past-due benefits. An underpayment must be payable to the individuals in the order of priority listed in GN 02301.030A.1., Statutory Order for Payment, for Title II cases. For Title XVI cases, refer to SI 02101.003A. In concurrent Title II and Title XVI cases, the fee agreement approval remains valid if either a Title II or Title XVI underpayment is payable.

For policy on direct payment of the authorized fee, see GN 03920.016B.

If we determine that no one is eligible for the underpayment (in concurrent Title II and Title XVI cases this would mean that either there was no underpayment due under either Title or there was no one eligible to be paid the underpayment under the rules for Title II or Title XVI underpayments), we will rescind the fee agreement approval. In such a situation, the fee agreement no longer meets the statutory requirement that the claim or post-entitlement or post-eligibility action results in past-due benefits (refer to GN 03940.003). We will notify the representative using the paragraphs entitled “Fee Agreement Subsequently Disapproved – No Past-Due Benefits.” The rescission will follow the same general principles expressed in the notice paragraphs listed in GN 03940.055C.3.a.

If there are no known survivors of the deceased claimant or, for Title II purposes, no legal representative of the estate, we will mail the determination rescinding the approval to the estate of the deceased at the deceased's last known address. We will also inform the representative that they must file a fee petition with us for authorization to charge and collect a fee.

When the FO CS receives a fee agreement after the favorable decision has been input into the system on a Title II only claim or the Title II portion of concurrent claim, but before we issue the Title II notice of favorable decision, the CS will:

• •

  Take the actions described in GN 03940.010B.

• •

  Upload the fee agreement and the fee agreement determination to the Evidence Portal.

• •

  Notify the PC and include a brief explanation of the situation and a reference to GN 03940.001B. and request that the material be directed to CA PROC for issuance of a corrected notice with appropriate fee agreement language, including the fee agreement determination, any past-due benefit and authorized fee amounts, and right to request administrative review.

If the PC receives the fee agreement determination in time to incorporate the action into the award notice, it will do so. However, in most cases, once the Earnings Computation trigger is done, the PC will not receive the fee information in time to correct the initial notice to the claimant to reflect the determination on the fee agreement. In such a case, the PC must issue a corrected award notice to reflect our approval or disapproval of the fee agreement and, if the decision maker approved the fee agreement, information on the payment of the fee.

When the Title XVI claim is adjudicated favorably, or when a claim was previously denied and the appeal reverses that denial with a partially or fully favorable decision, we issue the automated SSI Notice of Award (SSA-8025) the same day the Title XVI claim is adjudicated (i.e., there are no days in between adjudicating the claim and preparing the Notice of Award), unless the user suppressed the automated notice. If the user suppressed the automated notice, so that the fee agreement receipt date is prior to the date of the award notice, the CS will:

• •

  Take the actions described in GN 03940.010B.

• •

  Issue a fee notice to reflect our approval or disapproval of the fee agreement and information on the payment of the fee.

• •

  Take the actions described in GN 03940.010B.

• •

  Issue a fee notice to reflect our approval or disapproval of the fee agreement and information on the payment of the fee.

In concurrent Titles II and XVI claims, the PC will issue the notice to reflect our approval or disapproval of the fee agreement. If the PC approves the fee agreement, the PC CS issues a fee notice to advise the claimant and the representative of:

• •

  The amount of the fee authorized based on the Title XVI past-due benefits, and

• •

  The fee payment.

  NOTE: An automated Title XVI fee notice is produced when the fee is resolved. See GN 03940.050C for information regarding when manual processing is necessary. 

Take no action under the fee agreement process for unfavorable decisions and determinations (hereinafter we generally refer to both as a “decision”). But see GN 03940.001D concerning concurrent Titles II and XVI claims.

1. a. 

   Approve or disapprove the fee agreement, using the instructions in GN 03940.003.

2. b. 

   Document the determination, providing rationale for a disapproval. Form SSA-553 (Special Determination) may be used for this purpose. (See GN 03905.065 Exhibit 1 for sample language.)

3. c. 

   Annotate the SSA-1128 (Representative Involved) if there is a paper file. (See GN 03905.025.)

4. d. 

   Determine if a non-attorney representative is eligible for direct payment by checking the Registration, Appointment, and Services for Representatives (RASR) EDPNA (eligible for direct payment non-attorney) Query and record the results on the Modernized Claim System (MCS) DW01 screen as follows:

   ISSUE – EDPNA

   REC – Input date of verification

   REMARKS – Based on information on the list, type “Eligible for Direct Payment” (or “EDP”), “Not eligible for direct payment” (or “NEDP”), or “Not on list.”

   If the non-attorney representative is eligible for direct payment, the NOT2 screen should show “Eligible for Direct Pay Non-Attorney.” If the non-attorney representative is not eligible for direct payment at the time the claim is being processed, verify that the Appointed Representative type on the NOT2 screen shows “2,” “non-attorney.” Make any corrections or changes needed in RASR.

   See GN 03920.016B. for the requirements for representatives to receive direct payment.

   If a representative has validly assigned direct payment of their authorized fee to an entity as set forth in GN 03920.021, determine if that entity is eligible to receive direct payment of fees by querying RASR to ensure that the entity has registered and not been placed on the Ineligible for Direct Payment Entity list.

5. e. 

   Follow the instructions in MS 03509.009 (NOT2 screen), MSOM MCS 008.004 (DW01 screen) and MSOM MS 03514.006 (BCF on BCRN screen). For dual entitlement claims, refer to GN 03940.040.

6. f. 

   If the case is a MCS processing limitation, also complete the Benefit Continuity Field (BCF), enter the remark “Fee Agreement Case” and the representative's name and address in the A101 (Automated SSA-101) BCRN Screen, and enter the MADCAP fee agreement paragraphs for inclusion in the award notice in the BCRN screen NOTICE field. Refer to MS 03514.006.

7. g. 

   Ensure that the fee agreement and the fee agreement determination are associated with the claim(s) file and loaded to Evidence Portal.

8. h. 

   Notify the appropriate processing center (PC). If the claim(s) file is paper, send the file to the appropriate PC.

• •

  To determine the amount of the authorized fee for the purpose of possibly filing a request for administrative review, check the Single Payment System, the Master Beneficiary Record, or the award notice which is available through the Online Retrieval System (ORS), eView, or Evidence Portal.

See GN 03960.010B.2, GN 03960.010C.1, and GN 03960.010C.2 for further information regarding requesting administrative review under the fee agreement process.

Follow steps GN 03940.015A.2.c. — GN 03940.015A.2.f.

• •

  Upon verifying the eligibility for direct payment of a representative, record the results on the Modernized Development Worksheet (MDW), following the input directions in GN 03940.015A.2.d.

• •

  Do not approve or disapprove the fee agreement because you are not the decision maker in a non-DOFA claim (see GN 03940.002). Ensure that the fee agreement is associated with the claim(s) file and loaded to Evidence Portal. Alert the PC by email or other reliable method and flag a paper claim file with an SSA-1128.

• •

  NOT2 for Fee Agreement Type - Leave blank.

  • –

    MCS will automatically code ATY04 to DW01 when NOT2 "Fee Agreement Type" is blank.

• •

  NOT2 for Fee Agreement % — Leave blank.

• •

  NOT2 for Fee Agreement Amount — Leave blank.

• •

  NOT2 for the Last Withholding Date — Enter the month prior to the month of adjudication, see GN 03920.030B.

• •

  On the DW01 screen, receipt in the automatic ATY04 with "XXXXXX".

• •

  Add a new issue for ATY00.

  • –

    Add the remark "no past-due benefits" next to the ATY00 issue.

• •

  Add an RPOC to document disapproval of the fee agreement because no past-due benefits are involved.

• •

  Notice must advise the claimant and the representative(s) that the representative must file a fee petition for authorization to charge and collect the representative's fee.

  • –

    For cases adjudicated via MCS EC, no additional notices are required, MCS will generate the correct notice.

  • –

    For cases not adjudicated via MCS EC at the initial or reconsideration levels, include the notices on the A101/EF101 in the remarks/notice fields. Technicians will include ATYR15.

    NOTE 1: If the representative assigned direct payment of their fee to an entity and we receive information or discover that the representative has died, send a copy of this notice to the entity’s point of contact (POC). For information on assigning direct payment of fees, including the roles and responsibilities of a POC, see GN 03920.021.

• •

  Delete the automated 098/099 diary on the DECI screen, since there are no past-due benefits and we will not control for cases that do not result in past-due benefits.

• •

  After adjudicating the claim via MCS EC, on the following business day, the technician will add a special message to the record showing representative’s name and remark, "Case resulted in no past-due benefits, fee petition, fee paid by claimant."

1. a. 

   Follow GN 03940.015A.2. or GN 03940.015A.3. when awarding benefits to the primary claimant and any non-delayed auxiliary beneficiary. Do not code the fee agreement as “undecided.”

2. b. 

   Designate an incomplete notice if the case is processed with a manual award.

3. c. 

   Select paragraphs from GN 03940.080, which explain that the fee amount is an interim action subject to change once SSA adjudicates the delayed auxiliary claim(s), and complete the fill-ins necessary for the award notice. For MCS awards, annotate the NOT3 (see MS 03509.010)

In a claim for disability benefits, including widow(er)'s and child's insurance based on disability, follow the instructions for initial disability claims in GN 03940.010B., GN 03940.015A. and GN 03940.015B.

Because you are not the decision maker at the reconsideration level in a claim for retirement or survivors insurance benefits, follow the general instructions in GN 03940.010B.1. – GN 03940.010B.4., and the instructions for non-DOFA claims in GN 03940.015A.3.

Take no action under the fee agreement process for unfavorably decided PE issues.

If you make a favorable decision on the PE issue, approve or disapprove the fee agreement. (Refer to GN 03940.003B.5. for information on PE actions that yield past-due benefits.)

The component that effectuates the favorable decision determines the fee authorized under the approved fee agreement. To determine the amount of the fee for purposes of possibly filing a request for administrative review (see GN 03960.010B.2., GN 03960.010C.1. and GN 03960.010C.2.), refer to the authorized fee information available through appropriate systems or locate the notice of the fee authorization in ORS, eView, or Evidence Portal.

If you did not decide the PE issue, take no action on the fee agreement. The person who made the favorable decision (i.e., the PC adjudicator, ALJ, or Administrative Appeals Judge) is the decision maker and is responsible for approving or disapproving the fee agreement.

In fully automated claims with complete notice coding, the system:

• •

  Calculates the fee under the fee agreement process, if the decision maker approved the fee agreement;

• •

  Withholds up to 25 percent of past-due benefits towards direct payment when the representative is eligible for and did not waive direct payment;

• •

  Prepares the award notice advising the claimant and representative of the determination on the fee agreement and, if the decision maker approved the agreement, the amount of the authorized fee;

• •

  Calculates the assessment based on the direct payment amount (see GN 03920.019, Assessment on Representatives Who Receive Direct Payment); and

• •

  Deducts the assessment and pays the balance to a representative who is eligible for and has not waived direct payment, or to an eligible entity when there is a valid assignment, if the payment can be made when the claimant's award is processed.

In claims with incomplete notice coding, the system:

• •

  Withholds 25 percent of past-due benefits towards direct payment when the representative is eligible for and has not waived direct payment; and

• •

  Produces an alert (see MSOM MS 03509.009 ).

The claims specialist (CS) or other appropriate technician will take the following actions:

• •

  If the representative is a non-attorney and information is received that indicates a change in the representative's direct payment eligibility, follow the procedures in GN 03940.020E.1. below to verify eligibility and record the results.

• •

  Identify and complete the necessary paragraphs for the award notice, advise, the parties of the fee agreement determination, and advise the parties of the right to request administrative review of the determination. If the decision maker approved the fee agreement, also advise the parties of the fee authorized under the fee agreement and of the right to request administrative review of the authorized fee amount.

• •

  Access the Special Message screen through MONET (or MACADE) and select standard special message 52. Process standard special message 52 to the MBR. Special message 52 will display: "APPOINTED REPRESENTATIVE(S) INVOLVED – SEE RASR, APPREP, AND APPFEE DATA LINES FOR ADDITIONAL INFORMATION."

Follow general claims processing instructions when processing non-MCS or MCS exclusion claims, and take the following additional actions:

• •

  If the representative is a non-attorney and information is received that indicates a change in the representative's direct payment eligibility, follow the procedures below in GN 03940.020E.1. to verify eligibility and record the results.

• •

  Ensure that the notice language refers to the fee agreement process, advises the parties of the fee agreement determination, and advises the parties of the right to request administrative review of the determination. If the decision maker approved the fee agreement, also advise the parties of the fee authorized under the fee agreement and of the right to request administrative review of the authorized fee amount.

• •

  Withhold the authorized fee amount (or 25 percent of past-due benefits if the authorized fee amount is not known) if the representative did not waive a fee and is eligible for direct payment. Also, see the note in GN 03940.007A.

• •

  Deduct any funds the representative holds in escrow from the authorized amount if the escrow amount is known.

• •

  Certify direct payment of the authorized fee less the previously deducted escrow funds and the assessment to the representative who is eligible for direct payment or the entity if there is a valid assignment, and release any remaining past-due benefits to the claimant and any auxiliary beneficiaries, unless the claimant filed concurrently for Title II and Title XVI benefits and windfall offset is still pending.

Approve or disapprove the fee agreement, as explained in GN 03940.001D.

If the fee agreement is approved, determine if a non-attorney is eligible for direct fee payment by checking RASR. See GN 03920.018, Direct Payment for Non-Attorney Representatives, for detailed information. Record the results on the MCS DW01 screen as follows:

• •

  ISSUE – EDPNA (stands for “eligible for direct payment non-attorney").

• •

  REC – Input date of verification.

• •

  REMARKS – Based on results of checking the list, type “Elgble for Direct Pymnt” (or “EDP”), “Not elgble for direct pymnt” (or “NEDP”), or “Not on list.”

• •

  If the non-attorney representative is eligible for direct payment, the NOT2 screen should show “Eligible for Direct Pay Non-Attorney.” If the non-attorney representative is not eligible for direct payment at the time the claim is being processed, verify that the Appointed Representative type on the NOT2 screen shows “2,” “non-attorney”. See GN 03920.016B. for the requirements for a representative to be eligible for direct payment. See GN 03920.016C. for policy on direct payment to representatives, or to entities if there is a valid assignment.

If the non-attorney states they are eligible for direct payment but our records show they are not eligible, advise the representative that we cannot make direct payment. Model language to use in these situations follows:

You advised your client, (beneficiary's name), and indicated on the Form SSA-1696 (Claimant's Appointment of Representative) that you are eligible for direct payment. Under Titles II and XVI of the Social Security Act, certain non-attorney representatives have the option to have approved fees withheld and paid directly from a claimant's past-due benefits. However, [select the conclusion that describes the status]

• •

  you do not meet all the qualifications to be eligible for direct payment; or

• •

  you did not meet all the qualifications to be eligible for direct payment until after we effectuated the favorable decision on your client's claim; or

• •

  you failed to maintain your eligibility for direct payment.

We will not make direct payment of a fee in this case. Accordingly, we will not pay any authorized fee directly to you. You must look to the claimant for payment of the fee authorized in this case.

If a representative has validly assigned direct payment of their authorized fee to an entity as set forth in GN 03920.021, determine if that entity is eligible to receive direct payment of fees by querying RASR to ensure that the entity has registered and has not been placed on the Ineligible for Direct Payment Entity list.

Follow the instructions in MS 03509.009 for MCS claims processing, and GN 03940.020D.1 or GN 03940.020D.2., as appropriate.

Release remaining withheld funds, if any, to any beneficiaries unless the claimant filed concurrently for Title II and Title XVI benefits and windfall offset is still pending, or a court case is pending.

• •

  Enter the remark “Fee Agreement Case” and the name and address of the representative, or if there is a valid assignment the entity's name and address on the A101 BCRN screen;

• •

  Follow the procedures above in GN 03940.020E.1. that pertain to a non-attorney representative and eligibility for direct payment;

• •

  Withhold 25 percent of past-due benefits, up to the specified dollar amount of the fee cap indicated in GN 03940.003B.3., if the representative is eligible for direct payment; and

• •

  Designate the fee agreement paragraphs for the notice.

Document the fee agreement determination on a Form SSA-553 (Special Determination) or another designated form. Include the specific rationale for the fee agreement approval or disapproval. For sample language of a fee agreement determination, see GN 03905.065B.1.

Ensure that there is an active representative flag for an electronic folder or annotate and attach the Form SSA-1128 (Representative Involved) if there is a paper claim(s) file.

The FO forwards the favorable reconsideration determination with the fee agreement to the PC when the FO cannot complete the processing action. The PC follows the procedures in GN 03940.020D to process the claim.

The PC Claims Specialist (CS) or other staff member designated by the PC annotates the "Special Message" fields of the Master Beneficiary Record (MBR).

• •

  To input the special message, access the "Special Message" screen through MONET (or MACADE) and select standard special message 52. Process standard special message 52 to the MBR. Special message 52 will display: "APPOINTED REPRESENTATIVE(S) INVOLVED – SEE RASR, APPREP, AND APPFEE DATA LINES FOR ADDITIONAL INFORMATION."

1. a. 

   Verify through the Registration, Appointment, and Services for Representatives (RASR) database that:

   • •

     If the representative is an attorney, the representative is not sanctioned and is currently qualified to be an attorney representative, per GN 03910.020B.1.; or

   • •

     If the representative is a non-attorney, the representative is not sanctioned and is eligible for direct fee payment, per GN 03920.018.

   • •

     The eligible representative has not waived the fee or direct payment of a fee; and

   • •

     If an eligible representative has validly assigned direct payment of their authorized fee to an entity, that entity is eligible to receive direct payment of fees and has not been placed on the Ineligible for Direct Payment Entity (IDPE) list. For information on assignment of direct payment of fees, see GN 03920.021. For information on the IDPE list, see GN 03920.052.

2. b. 

   Process the non-District Office Final Authorization (non-DOFA) claim through Modernized Claims System (MCS) or A101 or EF101, per the procedures in GN 03940.020E.

3. c. 

   Withhold 25 percent of the past-due benefits or the amount of the authorized fee, if known, if the representative is eligible for and has not waived the fee or direct payment.

4. d. 

   Prepare an Action Control Record (ACR) when a direct fee payment is involved, unless an ACR controlling the award and action was previously created.

• •

  NOT2 for Fee Agreement Type - Leave blank.

  • –

    MCS will automatically code ATY04 to the DW01 when NOT2 "Fee Agreement Type" is blank.

• •

  NOT2 for Fee Agreement% - Leave blank.

• •

  NOT2 for Fee Agreement Amount - Leave blank.

• •

  NOT2 for Last Withholding Date - Code the month before adjudication, see GN 03920.030B.

• •

  On the DW01 screen, receipt in the automatic ATY04 with "XXXXXX."

• •

  Add a new Report of Contact (RPOC) to document disapproval of the fee agreement because no past-due benefits are involved.

• •

  The notice will advise the claimant and the representative(s) that the representative(s) must file a fee petition(s) to receive authorization to charge and collect a fee.

  • –

    For cases adjudicated via MCS earnings computation (EC), no additional notices are required. MCS will generate the correct notice.

  • –

    For cases not adjudicated via MCS EC, include representative notices on the A101/EF101 in the remarks/notice fields and include an ATYR15. Choose fill-in choice D.

• •

  Delete the automated 098/099 diary on the DECI screen. Since there are no past-due benefits, we will not control for cases that do not result in past-due benefits.

• •

  One day after adjudicating the claim via MCS EC, the technician will add a special message to the record showing the representative's name and adding a remark: "Case resulted in no past-due benefits, fee petition, fee paid by claimant."

• •

  For cases adjudicated via MACADE, technicians will provide the special message to the Benefit Authorizer (BA).

When the decision maker approved the fee agreement in a claim, take these steps:

1. a. 

   Verify through RASR that:

   • •

     If the representative is an attorney, the representative is not sanctioned and is currently qualified to be an attorney representative, per GN 03910.020B.1.; or

   • •

     If the representative is a non-attorney, the representative is not sanctioned and is eligible for direct fee payment, per GN 03920.018.

   • •

     The eligible representative has not waived the fee or direct payment of a fee; and

   • •

     If a representative has validly assigned direct payment of their authorized fee to an entity as per GN 03920.021, that entity is eligible to receive direct payment of fees and has not been placed on the IDPE list. For information on the IDPE list, see GN 03920.052.

2. b. 

   Effectuate the decision following the processing instructions in GN 03940.020C through GN 03940.020E.

3. c. 

   Send a copy of the award notice, including fee approval language, to the representative.

4. d. 

   Certify direct payment to the representative who is eligible or to an entity if there is a valid assignment, unless any qualified party or the decision maker requested administrative review.

5. e. 

   Release remaining past-due benefits to the claimant and any auxiliary beneficiaries, unless:

   • •

     A windfall offset is pending for concurrent Title II and Title XVI claims, or

   • •

     There is Federal court involvement. For court fees, refer to GN 03920.060.

Approval of a fee agreement is contingent on whether the claim results in past-due benefits. For the relevant fee agreement evaluation policy, see HALLEX I-1-2-12.

Fee agreements can be processed only if the claim, for which the fee agreement was filed, was for entitlement and resulted in past-due benefits.

Therefore, if the claim does not result in past-due benefits, send a notice advising the representative(s) and claimant, that the fee agreement cannot be processed, and the representative(s) must file a fee petition in order to charge and collect a fee.

The notice must advise the representative(s), that:

• •

  We cannot act on the prior fee agreement approval and must rescind the approval.

• •

  The representative still needs to have our approval to charge and collect a fee; include paragraphs ATY817, ATYR03, and 160 in the notice with other required paragraphs and send a copy of the notice to the servicing FO in concurrent Titles II and XVI cases.

Processing instructions:

• •

  NOT2 for Fee Agreement Type — Leave blank.

  • –

    MCS will automatically code ATY04 to the DW01 when NOT2 "Fee Agreement Type" is blank.

• •

  NOT2 for FEE Agreement % — Leave blank.

• •

  NOT2 for FEE Agreement Amount — Leave blank.

• •

  NOT2 for Last Withholding Date Code the month before the month of adjudication, see GN 03920.030B.

• •

  On the DW01 screen, receipt in the automatic ATY04 with "XXXXXX."

• •

  Add a new issue for ATY00.

  • –

    Add the remark "no past due benefits" next to the ATY00 issue.

• •

  Add an RPOC to the document disapproval of the fee agreement because no past-due benefits are involved.

• •

  The notice must advise the claimant and the representative that the representative must file a fee petition to charge and collect a fee.

  • –

    NOT3 screen, add ATYR03.

• •

  Delete the automated 098/099 diary on the DECI screen, since there are no past-due benefits. SSA will not control cases that do not result in past-due benefits.

• •

  Add a special message to the record showing the representative's name and add the remark, "Case resulted in no past-due benefits, fee petition, fee paid by claimant."

  • –

    After adjudicating the claim via MCS EC, the next day the technician will add a special message to the record showing the representative's name and remark, "Case resulted in no past-due benefits, fee petition, fee paid by claimant."

  • –

    For cases adjudicated via MACADE, technicians will provide the special message to the BA.

When the decision maker disapproved the fee agreement in the claim, and a representative is eligible for direct payment of fees:

• •

  Effectuate the decision as a fee petition case;

• •

  Withhold 25 percent of the past-due benefits;

• •

  Do not include a paragraph stating the fee agreement is disapproved in the notice of award.

The ALJ or AC decision notice contains language advising the claimant and representative(s) of the disapproved fee agreement and administrative review rights.

1. a. 

   If the attorney adviser, ALJ, or AAJ did not make a determination on the fee agreement, do not delay effectuating the decision. Take the following actions:

   • •

     Process the claim.

   • •

     Verify through RASR that:

     • –

       If the representative is an attorney, the representative is not sanctioned and is currently qualified to be an attorney representative, per GN 03910.020B.1.; or

     • –

       If the representative is a non-attorney, the representative is not sanctioned and is eligible for direct fee payment, per GN 03920.018.

     • –

       The eligible representative has not waived the fee or direct payment of a fee; and

     • –

       If an eligible representative has validly assigned direct payment of their authorized fee to an entity as per GN 03920.021, that entity is eligible to receive direct payment of fees and has not been placed on the IDPE list.

   • •

     Withhold 25 percent of past-due benefits if any representative on the claim is eligible for and did not waive direct payment.

   • •

     Request an incomplete notice in MCS. For instructions, see NL 00725.003.

   • •

     Use the "neutral" language paragraphs regarding the representative's fees. For language, refer to GN 03940.075. Do not include the paragraphs mentioning the fee petition process in the notice.

2. b. 

   Contact the appropriate office depending on who issued the fully or partially favorable decision. Contact the Office of Hearing Operations (OHO) if an ALJ or Attorney Advisor issued the decision; or contact the Attorney Fee Branch (AFB) in the Office of Appellate Operations (OAO) if an AAJ issued the decision.

   In order to obtain a signed determination on the fee agreement:

   • •

     Refer to the following chart to email a memo to the appropriate hearing office (HO) control box (cc the ALJ and the Hearing Office Director (HOD)) or OAO’s AFB with the date of the fully or partially favorable decision and a reference to the fee agreement in eView. Prior to sending a follow-up, review the claim(s) file to ensure the fee agreement determination has not been added. For sample language, see GN 03905.065B.3.

   • •

     In the email, advise OHO or OAO’s AFB whether an exception to the fee agreement process exists and, if so, which one(s). For exceptions to the fee agreement process, see GN 03940.003D.

   • •

     Document and report (by scanning into eView or otherwise adding to the claim(s) file) any contact with OHO or OAO, including emails about the status of the fee determination.

   • •

     When you receive the determination on the fee agreement, proceed as instructed.

   Refer to the chart for contacts and diaries.

   PC Action	ALJ (OHO)	AAJ (OAO/AFB)
   Initial contact Diary for 7 days.	• Send an email message to the HO control email box. • cc the ALJ and the HOD. • Use OHO Fee Contacts to obtain the HO control email box information and the name of the HOD.	• Contact OAO's AFB by • email by sending an email message to ^DCARO OAO ATTY FEE BR .
   First follow-up Diary for 15 days.	If you do not receive an acknowledgment: • Send a follow-up email to the HO control email box • cc the ALJ and the HOD.	If you did not receive an acknowledgment, follow-up with an email:
   Second follow-up Diary for 30 days.	• Send an email to the Regional Office (RO) control email box. • Cc the HOD, ALJ and HO control email box, see language in GN 03905.065B.3. • In the follow-up email, refer to the fee agreement and copies of earlier emails scanned to eView. • The OHO Fee Contacts provides RO control email box information, HO codes within the respective RO jurisdictions and a link to each HO's webpage and Office of Directory with the names of each office's HOD.	Send a follow-up email to the AFB to ^DCARO OAO ATTY FEE BR .
   Third follow-up Diary for 30 days. (Continue to email reminders until you receive a decision on the fee agreement.)	• Send an email to the Office of the Chief ALJ (OCALJ) at ^OHO OCALJ Delayed Fee Agreement Protest • Ask OCALJ to follow up on the request. • Include the prior emails you sent to the HO and the RO in the email you send to OCALJ.	• Send earlier emails to the AFB • Request they follow up. • Include a summary or documentation of previous follow-up actions and the PC contact name and phone number.

Challenge the fee agreement approval if there may be a reason to find that the attorney adviser, ALJ, or AAJ incorrectly approved a fee agreement, such as:

• •

  The fee agreement does not meet the requirements of the Act, as explained in GN 03940.003B; or

• •

  An exception to the fee agreement process applies, as explained in GN 03940.003D.

Subsequent handling of the representative fee ACR depends on both:

• •

  The means by which the fully or partially favorable decision is effectuated, and

• •

  Whether we can pay the fee immediately.

The local PC instructions may call for slightly different routing.

Process the fee agreement based on the known past-due benefits at the time of the award.

1. a. 

   Calculate the fee amount using the primary claimant's and any non-delayed auxiliary beneficiary's past-due benefits amount(s) (see GN 03940.020).

2. b. 

   Record the fee amount in the claim(s) file.

3. c. 

   Review the Representative Appointment, Services, and Registration (RASR) application to determine if a non-attorney representative is eligible for direct fee payment. See GN 03940.020E.1. for guidance in interpreting the entry.

4. d. 

   Enter information via the APPREP/APPFEE data (ARA/ARB screens) and withhold via the AD special entry on the MACADE history screen for initial claims and post-entitlement or eligibility actions. This data passes to the attorney fee data line of the Master Beneficiary Record (MBR).

5. e. 

   Annotate the MBR Special Message field that an additional fee may be authorized when the auxiliary claim(s) is adjudicated (see MS 06307.008 ).

6. f. 

   Prepare a notice with the appropriate fee agreement paragraphs. Replace the fee agreement amount paragraph, as the case requires. These are the MADCAP and MCS paragraphs for delayed auxiliary claims:

   • •

     ATYR20: Fee amount Title II claim only - NH only – delayed auxiliary claim(s) pending or expected - NH's award notice

   • •

     ATYR22: Fee amount Title II claim - only NH and any non-delayed auxiliary beneficiaries - delayed auxiliary claim(s) pending or expected - NH's award notice

   • •

     ATYR24: Fee amount concurrent Title II and Title XVI claims offset information pending – NH only – delayed auxiliary claims pending or expected - NH's award notice

   • •

     ATYR26: Fee amount concurrent Title II and Title XVI claims - offset information pending - NH and non-delayed auxiliary beneficiaries - delayed auxiliary claims pending or expected - NH's award notice

   Refer to NL 00725.005 for MCS paragraphs. Also refer to GN 03940.080, Fee Agreement Process – Title II – Delayed Auxiliary Claim(s) Paragraphs.

7. g. 

   Send the notice(s) to the claimant, any non-delayed auxiliary beneficiary, and a copy to the representative. Refer to GN 03316.110 for instructions on disclosure to auxiliary claimants and beneficiaries about a primary claimant and to GN 03316.105 for instructions on disclosure without consent to a primary claimant about an auxiliary filing on their record. Also send an e-mail message to the Office of Hearings Operations (OHO) or Office of Appellate Operations (OAO) decision maker to notify the decision maker of the authorized fee amount and that a copy of the award letter is available in the Online Retrieval System (ORS), if the decision maker requested to be notified. Use the global address list in outlook to locate the decision maker’s email address.

   NOTE: To request the notification for the purpose of possibly requesting administrative review, the OHO or OAO decision maker will flag the claim and provide an e-mail address to which to send the notification. Refer to Hearings, Appeals, and Litigation (HALLEX) manual I-1-2-45 for the initial procedures an OHO or OAO decision maker will follow to request administrative review of the fee amount.

8. h. 

   Withhold 25 percent of past-due benefits or the amount of the authorized fee, if known, when the representative has not waived their fee or direct payment of the fee and is eligible for direct payment. Withhold 25 percent if there is Federal court involvement.

9. i. 

   Certify direct payment to the representative who is eligible for direct payment or to an eligible entity if there is a valid assignment if no one has requested administrative review (or once we complete the review if one was requested). See GN 03920.016B. for more information about eligibility for direct payment. 

After we adjudicate the delayed auxiliary claim(s), take the following actions:

1. a. 

   Authorize a fee based on any auxiliary's past-due benefits. However, to ensure we do not authorize a fee in excess of the statutory maximum indicated in GN 03940.003B.3 (or any lower maximum fee specified in the fee agreement) consider the fee amount already authorized based on the primary claimant's and any non-delayed auxiliary beneficiaries' Title II past-due benefits. Also, as stated in GN 03940.015C., in concurrent cases check to ensure that a Title XVI fee amount was not inadvertently authorized early (i.e., before the entire Title II fee amount was known). If a Title XVI fee amount was inadvertently authorized early, also consider that amount in determining how much has been authorized toward the statutory maximum indicated in GN 03940.003B.3 (or any lower maximum fee specified in the fee agreement). The amount of the Title XVI fee is recorded in the T16$ field on the AUTH segment of the Supplemental Security Record (SSR). If direct payment was made, the Title XVI amount passes to the Single Payment System (SPS).

   Refer to GN 03920.035 for withholding and proration policy and procedures.

   NOTE: The fee authorization based on any delayed auxiliary beneficiary’s past-due benefits is a reopening of the initial fee authorization. We are not establishing a new fee event. The primary claimant and any auxiliary beneficiaries are bound by the primary claimant’s fee agreement. Technicians must update the APPREP field on the MBR for the primary claimant to reflect the updated past-due benefits total for all individuals bound by the primary claimant’s fee agreement. 

2. b. 

   When the representative is eligible for direct payment and the amount withheld from the primary claimant's past-due Title II benefits (or, in concurrent cases, Title XVI benefits) was less than the maximum fee amount provided in the approved fee agreement, withhold 25 percent of any auxiliary beneficiary’s past-due benefits or the amount of the authorized fee, if known, towards direct payment. If there is Federal court involvement, withhold 25 percent of any auxiliary beneficiary’s past-due benefits.

3. c. 

   Prepare a notice with the appropriate fee agreement paragraphs.

4. d. 

   Send the notice to any auxiliary beneficiary and a copy to the representative. If the claim is flagged, also send an e-mail message about the fee authorization to the OHO or OAO decision maker.

5. e. 

   If the representative is eligible for direct payment and has not waived a fee or direct payment or there is an eligible entity with a valid assignment, certify direct payment to the representative or to the entity if no one has requested administrative review (or once we complete the review, if one was requested).

6. f. 

   If all auxiliary beneficiaries are not members of the same household, adjust any non-delayed auxiliary beneficiary's benefits based on the proration of the fee amount.

7. g. 

   Disburse any remaining past-due benefits withheld to the claimant and any auxiliary beneficiary unless there is Federal court involvement. For any auxiliary beneficiaries that are not a member of the same household as the claimant, follow the steps in GN 03930.070B to determine how to release the remaining past-due benefits.

8. h. 

   Notify the primary claimant and all auxiliary beneficiaries of your proration action.

To verify the status of a WC/PDB claim and any WC/PDB payments made, use the applicable sources and procedures in DI 52145.001 - DI 52145.015.

Obtain the best information available regarding a WC/PDB claim and payments within the time limits set in the procedures in this section. After the date we notify the claimant and the representative of the authorized fee amount, unless one of the exceptions listed GN 03920.040A.1 or GN 03920.040B applies, any increase or decrease in the amount of past-due benefits (including WC/PDB offset adjustment) will not change:

• •

  The past-due benefits withholding amount; or

• •

  The authorized fee.

Determine whether to authorize the fee at the time you are effectuating the determination or decision by determining the status of the WC/PDB claim according to the following scenarios.

• •

  Enter Fee Agreement Type (FAT) - 3 (Undecided) on NOT2 screen;

• •

  Designate an incomplete notice (e.g., enter “Y” in answer to the INCOMPLETE item of the NOT3 screen) (see MS 03509.010 for coding of the NOT3);

• •

  Instruct the PC to delete the fee agreement paragraphs. Request the appropriate fee agreement approval paragraph (MCS EC ATY800 or ATY801) and use a “neutral” language paragraph to address the representative's fee (see GN 03940.075 for paragraphs);

• •

  Enter the appropriate Single Payment System (SPS) issue code (see SM 00834.100 and MS 03508.004);

• •

  Annotate the special message field (see MS 06307.008 for instructions on completing the special message field) as follows: “Fee determination awaiting correct [WC/PDB rates or POA, etc.]”; and

• •

  Annotate the appropriate claim(s) transmittal as follows: “Fee Agreement Approved – Fee Payment Amount Unknown - Manual Notice Required.”

• •

  Enter Fee Agreement Type (FAT) U (Undecided) in Item 11;

• •

  Provide the fee agreement approval paragraphs (ATY800, ATY801) and the appropriate neutral language paragraph (see GN 03940.075 and NL 00720.050 for paragraphs);

• •

  Enter the appropriate SPS Issue Code (SM 00834.100, MCS Interface to SPS and MS 03508.004) on the MCS DW01 screen;

• •

  Annotate the special message field (see MS 06307.008  for instructions on completing the special message field) as follows: “Fee determination awaiting correct [WC/PDB rates or POA, etc.]”; and

• •

  Annotate the appropriate claim(s) transmittal as follows: “Fee Agreement Approved – Fee Payment Amount Unknown - Manual Notice Required”.

• •

  Enter Fee Agreement Type (FAT) - 3 (Undecided) on NOT2 screen;

• •

  Designate an incomplete notice (e.g., enter “Y” in answer to the INCOMPLETE item of the NOT3 screen) (see MSOM MCS 009.010 for coding of the NOT3);

• •

  Delete the fee agreement paragraphs. Request the appropriate fee agreement approval paragraph (MCS EC ATY800 or ATY801);

• •

  Use the appropriate “neutral” language paragraph to address the representative's fee. See GN 03940.075 for paragraphs A and B;

• •

  Enter the appropriate Single Payment System (SPS) issue code (SM 00834.100, MCS Interface to SPS, DIT Section 18-E Development Worksheet); and

• •

  Annotate the special message field (see MSOM T2PE 007.008 for instructions on completing the special message field) as follows: “Fee determination awaiting correct [WC/PDB rates or POA, etc.].”

• •

  Enter Fee Agreement Type (FAT) U (Undecided) in Item 11;

• •

  Provide the fee agreement approval paragraphs (ATY800, ATY801) and the appropriate neutral language paragraph (See GN 03940.075 and NL 00720.050 for paragraphs);

• •

  Enter the appropriate SPS Issue Code (SM 00834.100, MCS Interface to SPS, DIT Section 18-E Development Worksheet) on the MCS DW01 screen;

• •

  Annotate the special message field (see MSOM T2PE 007.008 for instructions on completing the special message field) as follows: “Fee determination awaiting correct [WC/PDB rates or POA, etc]”.

• •

  Enter the appropriate Attorney Payment Indicator on the ATT screen.

• •

  Annotate the APPREP line with a Fee Type – U (undecided).

When a claimant files a subsequent application while a request for review of a decision in a prior application is pending at the AC, the FO begins processing the subsequent application if there is a new issue (i.e., one that SSA has not already decided at some level of the administrative review process), such as whether the claimant is disabled after the date of the hearing decision.

If the subsequent application results in a favorable initial or reconsideration determination, the FO or PC, as appropriate, effectuates the determination. In disability cases, after the DDS adjudicates a case and makes a favorable determination, the effectuating component (i.e., the PC or FO):

• •

  Emails a copy of the disability determination form, SSA-831, to the Office of Appellate Operations (OAO) at ^DCARO OAO following the instructions in per DI 12045.027D.1.b, before it effectuates payment;

• •

  Adds a Special Message to the Master Beneficiary Record (MBR) or Supplemental Security Income Record (SSR) to identify the claim as a subsequent application with the prior application pending at the AC, with or without representative fee involvement;

• •

  Releases the award notice in the subsequent application; and

• •

  If there is a paper folder notifies OAO. OAO will advise and provide further routing instructions if it needs the paper folder (no further notification is needed if there is an electronic folder).

If the AC, or an ALJ on remand from the AC, later issues a fully or partially favorable decision in the prior application, the AC or ALJ also may affirm or reopen the favorable determination in the subsequent application, depending on the circumstances in the case.

If the subsequent application does not result in a favorable initial or reconsideration determination, and the claimant requests a hearing on the unfavorable determination, the Office of Hearings Operations (OHO) does not schedule a hearing or issue a decision until the AC acts on the request for review in the prior application. (Refer to DI 12045.027 and HALLEX I-1-10-5.)

The policy in this section applies to cases with the following profile:

• •

  A request for review of an ALJ's decision in a prior application is before the AC (based on a request for review of the hearing decision or remand from Federal court) or the prior application is otherwise pending before the AC or is pending before an ALJ after an AC remand;

• •

  The claimant filed a subsequent application; and

• •

  The claimant is represented in connection with one or both applications and has entered into a fee agreement with one or more representatives in the prior or subsequent application, or both.

When a case meets the profile in GN 03940.038C.1., we will apply all the fee agreement rules as if there were only one pending claim. (Refer to GN 03940.003 for fee agreement evaluation policy.)

1. a. 

   We will consider both applications to constitute one claim for purposes of approving or disapproving a fee agreement.

2. b. 

   When deciding whether any exceptions to the fee agreement process apply, we will consider any representative appointed in connection with the prior or subsequent application to have been an appointed representative in the one claim. Accordingly, if considering all representatives appointed in the prior and the subsequent applications, one of the “multiple representatives” exceptions to the fee agreement process may apply (see GN 03940.003D). If an exception applies, we may not use the fee agreement process to authorize fees to any representative in the claim. In this situation, all representatives, including any representative whose fee agreement was approved and subsequently disapproved, must file a fee petition to obtain authorization to charge and collect a fee.

3. c. 

   We will approve no more than one fee agreement in the one claim and will authorize a maximum fee not to exceed the lesser of 25 percent of past-due benefits or the specified dollar amount of the fee cap as indicated in GN 03940.003B.3 (or a lower fee cap specified in the fee agreement) for representational services in both applications, unless the fee is increased on administrative review.

4. d. 

   A representative who is dissatisfied with the fee authorized in connection with a subsequent or prior application case may request administrative review. In such a case, we will find good cause for the late filing of a request for administrative review when either of the following situations exists:

   • •

     Non-Court Case

     • –

       We authorized an amount equal to the statutory cap (or a lesser cap specified in the agreement) in connection with the subsequent application;

     • –

       We issue a favorable decision on the prior application that yields additional past-due benefits; and

     • –

       A party to the agreement requests administrative review of the authorized fee within 15 days of receiving the award notice we issue when effectuating the decision on the prior application.

   • •

     Court Case

     • –

       We authorized an amount less than or equal to the statutory cap (or a lesser cap specified in the agreement) in connection with the subsequent application;

     • –

       A Federal court issues a favorable judgment (see GN 03920.060) on the prior application that yields additional past-due benefits; and

     • –

       a party to the agreement requests administrative review within 15 days of receiving the award notice we issue when implementing the decision on the prior application.

       NOTE 1: A representative has the right to request administrative review in connection with any initial fee authorization. When a representative is authorized a fee amount that is less than the statutory cap (or a lower cap specified in the fee agreement) because 25 percent of the claimant's (and any auxiliary beneficiaries’ past-due benefits is less than the statutory or specified cap), and we later issue a more favorable decision that could yield an additional fee to the representative, the representative has another opportunity to file a timely request for administrative review of the authorized fee amount.

       NOTE 2: The decision maker who issues the favorable administrative decision on the prior application will process the request for administrative review of the authorized fee unless the only fee agreement submitted was in connection with the subsequent application. In that situation, the fee agreement decision maker for the subsequent application is the reviewing official.

       NOTE 3: When a Federal court issues a judgment on the prior application that is more favorable than the decision we issued on the subsequent application and, after the court issues its order, the representative requests administrative review of the fee we authorized based on the fee agreement approved in connection with the subsequent application, OAO staff reviews the fee.

5. e. 

   If the fee agreement includes a provision that the representative is unwilling to accept the statutory cap if the claimant files a subsequent application, the decision maker will disapprove the fee agreement.

6. f. 

   If we disapprove a fee agreement, any representative appointed in the prior or subsequent application, who wishes to charge and collect a fee, must file a fee petition.

We will accept a fee agreement filed with the subsequent application. We will accept a photocopy of a fee agreement, including a photocopy of a fee agreement filed in the prior application (see GN 03940.001C.).

The FO or PC decision maker will approve or disapprove a fee agreement when we make a favorable initial or reconsideration determination on the subsequent application if the fee agreement was filed during the subsequent application process. The decision maker will approve or disapprove the fee agreement based on whether it:

• •

  Meets the statutory requirements (refer to GN 03940.003B.); and

• •

  Is excepted from the fee agreement process (refer to GN 03940.003D.).

In deciding whether any exceptions to the fee agreement process apply, we will consider any representative appointed in the prior or subsequent application to be an appointed representative in the one claim. If the claimant has revoked a representative or a representative has withdrawn from serving as the claimant's representative, the FO or PC decision maker will document the file to reflect the former representative’s appointment and to show whether the former representative waives the fee or intends to request a fee, if that information is known. The decision maker may still approve a fee agreement despite the representative's withdrawal or discharge if, another representative(s) remain appointed on the claim, and the fee agreement is otherwise valid.

If the fee agreement has a two-tiered structure (i.e., the fee agreement applies only to services through a specified level of the administrative review process), the FO or PC decision maker will approve or disapprove the agreement based on the provision that applies to the administrative level at which we issue the favorable determination on the subsequent application. The FO or PC decision maker will not consider the level at which the prior application is pending in deciding whether to approve or disapprove the agreement. Refer to GN 03940.005 for two-tier fee agreement policy.

The FO or PC decision maker will take no action on a fee agreement filed only in connection with the prior application.

If the claimant is not represented in the prior application and does not indicate that the claimant is represented in the subsequent application, process the subsequent application without further documentation regarding representation.

If the claimant is currently represented or was represented in the prior application, contact the claimant and ask them the following questions:

1. a. 

   Does the claimant intend to have that representative represent them in the subsequent application?

   • •

     If yes, obtain a new Form SSA-1696 (Claimant's Appointment of a Representative) signed by the claimant and the representative. Also answer the question in GN 03940.038D.2.c.

   • •

     If no, ask:

2. b. 

   Does the claimant intend to have another person to represent the claimant in the subsequent application?

   • •

     If yes, obtain a new Form SSA-1696 for that representative. Also answer question in GN 03940.038D.2.c.

   • •

     If no, document the file indicating that the claimant chose not to be represented in the subsequent application.

3. c. 

   If the claimant is represented, will the fee agreement process be used?

   • •

     If yes and the claimant has a new representative, inform the claimant that a new fee agreement is needed.

   • •

     If yes and the claimant has the same representative as the claimant appointed in connection with the prior application, inform the claimant that a new fee agreement or a copy of any fee agreement filed in the prior application annotated by the claimant or representative to indicate that the fee agreement applies in the subsequent application is needed.

   • •

     If no or there is no known fee agreement, document the file that there is no fee agreement.

Follow existing guidelines in GN 03920.030 to calculate Title II past-due benefits, and in GN 03920.031 to calculate Title XVI past-due benefits.

Follow the existing procedures for authorizing a fee when the decision maker approved the fee agreement submitted in connection with the subsequent application (see GN 03940.000).

Consider the decision on the subsequent application a partially favorable decision for purposes of calculating the additional past-due benefits resulting from the decision on the prior application if:

• •

  the decision maker approved a fee agreement;

• •

  the claimant appointed the same representative in both the prior and subsequent applications; and

• •

  the favorable AC or ALJ decision in the prior application results in an additional period of entitlement and does not disturb the period of entitlement established in the subsequent application.

• •

  In filing a subsequent application in November 2024, the claimant indicates that the claimant is represented by attorney Kirk of the firm of Kirk, Spock and McCoy, P.C., in a request for review pending before the AC. The claimant and Representative Kirk entered into a fee agreement on November 30, 2024, providing that:

  • –

    the fee will not exceed the lesser of 25 percent of past-due benefits or $9,200 if SSA favorably decides the claim(s) at or before the level of the first ALJ hearing decision in the case; and

  • –

    the fee will equal 25 percent of past-due benefits if the claim progresses beyond that level of the administrative review process.

• •

  The FO adjudicator determines that the claimant also wishes Representative Kirk to represent the claimant in the claimant's subsequent application, and obtains copies of the signed Form SSA-1696 and fee agreement, annotated to indicate that Representative Kirk also represents the claimant in the subsequent application.

• •

  When making a favorable initial determination on the subsequent application, the FO adjudicator approves the fee agreement between the claimant and Representative Kirk. (At the initial determination level, the first “tier” in the fee agreement applies.)

• •

  The PC calculates that the past-due benefits resulting from the favorable decision in the subsequent application were $12,000. Based on the approved fee agreement, the PC releases a notice authorizing a fee of $3,000 to Representative Kirk, and directly pays Representative Kirk that amount less the applicable user fee.

• •

  In the prior application pending at the AC, the claimant also had appointed Representative Kirk, and had entered into a fee agreement on April 2, 2021, with the same terms as those in the agreement approved in the subsequent application except that the specified dollar amount of the fee cap was then $6,000.

• •

  The AC issues a favorable decision in the prior application, affirming the findings in the determination on the subsequent application and further finding an earlier onset date.

• •

  The Administrative Appeals Judge (AAJ) reviews the appointments of representative and the fee agreement approval in the subsequent application.

• •

  Because the fee agreement with Representative Kirk has already been approved, and there is no other appointed representative in the claim, the AAJ takes no action on the fee agreement.

  NOTE: The AAJ does not evaluate the fee agreement under the second “tier,” which in this example is a level of administrative review above the first hearing decision, because SSA reached a favorable determination under the first tier when the first favorable determination was issued at the initial level.

• •

  The PC calculates that the additional past-due benefits resulting from the AC's favorable decision are $20,000. Based on the fee agreement approved in the subsequent application, the PC sends notice authorizing an additional fee of $6,200 ($9,200 less the $3,000 previously authorized), and directly pays Representative Kirk that amount, less the applicable user fee (see GN 03920.019G for when an additional user fee will be charged). 

• •

  If any party requests administrative review of the amount of the fee based on the notice released in the prior application, the OAO designee, as the reviewing official, will consider the amount of fees authorized in both the prior and subsequent applications in determining an overall fee for services throughout the entire claims process.

• •

  In the subsequent application, the claimant appoints attorney Kirk of the firm of Kirk, Spock and McCoy, P.C. The claimant and Representative Kirk entered into a fee agreement on November 30, 2024, specifying a fee not to exceed the lesser of 25 percent of past-due benefits or $9,200.

• •

  The FO approves the fee agreement between the claimant and Representative Kirk when making a favorable determination on the subsequent application.

• •

  The PC calculates that the Title II past-due benefits resulting from the favorable determination in the subsequent application are $18,000. Based on the approved fee agreement, the PC releases a notice authorizing a fee of $4,500 to Representative Kirk, and directly pays Representative Kirk that amount less the applicable user fee.

• •

  In the prior application on review at the AC, the claimant had appointed Representative Kirk, and had also appointed attorney Spock of the same firm. The claimant and Kirk and Spock had entered into a fee agreement on April 1, 2021, providing that:

  • –

    the fee will not exceed the lesser of 25 percent of past-due benefits or $6,000 if SSA favorably decides the claim(s) at or before the level of the first ALJ hearing decision in the case; and

  • –

    the fee will be equal to 25 percent of past-due benefits if the claim progresses beyond that level of the administrative review process.

Neither the previous appointment nor the previous fee agreement had been made available to the FO.

• •

  The AC issues a favorable decision in the prior application, affirming the findings in the determination on the subsequent application and further finding an earlier onset date.

• •

  The AAJ reviews the appointments of representative in both the prior and subsequent applications and the fee agreement approval in the subsequent application. The AAJ notes that an exception applies because the claimant appointed an attorney (Representative Spock) who did not sign the fee agreement in the subsequent application.

• •

  The AAJ:

  • –

    Issues an order to Representative Kirk rescinding the fee agreement approval the FO issued (in connection with the subsequent application and the fee agreement dated November 30, 2024) and disapproving that fee agreement. The basis for the disapproval is that an exception applies: the claimant appointed more than one representative; all representatives did not sign a single fee agreement; and the representative who did not sign the fee agreement, did not waive charging and collecting a fee.

  • –

    Issues an order to Representatives Kirk and Spock disapproving the fee agreement submitted in connection with the prior application. Because the second “tier” of the agreement provides for a fee that exceeds the statutory limits at the level of AC review, the first basis for the disapproval is that it specifies a fee that is not limited to the lesser of 25 percent of past-due benefits or $9,200. The second basis is that an exception applies: the claimant appointed more than one representative; all representatives did not sign the most recent fee agreement; and the representative who did not sign the most recent fee agreement, did not waive charging and collecting a fee.

• •

  The AAJ's orders notify Representatives Kirk and Spock that they must send their fee petitions to OAO's Attorney Fee Branch in order to charge and collect fees.

• •

  The PC notifies Representative Kirk that the fee based on the incorrectly approved fee agreement is no longer the authorized fee. However, Representative Kirk's fee petition may include services performed in connection with both applications.

• •

  The PC calculates that the additional Title II past-due benefits resulting from the AC's favorable decision are $30,000. The PC recalculates the past-due benefits under the rules for “Partially Favorable Decisions” in GN 03920.030B. and withholds the appropriate amount ($7,500).

• •

  After Representatives Kirk and Spock file fee petitions, OAO's Attorney Fee Branch authorizes reasonable fees based on the representatives' services.

• •

  Based on the authorizations, the PC determines:

  • –

    whether Representative Kirk is owed any additional direct payment from withheld Title II past-due benefits, considering the previous authorization of $4,500, or whether Representative Kirk owes money back (i.e., the authorization on the fee petition was for less than $4,500), and

  • –

    how much, if any, to pay to Representative Spock from withheld Title II past-due benefits.

1. a. 

   If you have jurisdiction for processing the primary claim (i.e., the claim based on the claimant's SSN), follow the instructions in GN 03940.020 or GN 03940.025 for processing the fee agreement and authorizing a fee under the agreement.

   Also, if the past-due benefits due to the primary claimant do not yield the maximum representative's fee based on the approved fee agreement, add language to the notice advising the parties that SSA may authorize an additional fee based on the other claim. Include in the notice the following information:

   • •

     We may authorize an additional fee (or a fee, if there are no past-due benefits on the current claim) based on past-due benefits resulting from another claim.

   • •

     We will notify the claimant of any additional authorized fee after we complete adjudication of the other claim.

   NOTE : If there is a valid assignment of direct payment of a representative’s fee to an entity, the entity’s point of contact (POC) may need to review fee-related information to resolve fee-related related issues. However, do not send a copy of the award notice or other protected information (e.g. claimant information) to the entity’s POC unless it is the minimum amount of information necessary for the POC to review it to resolve fee-related issues. Only disclose information that is not relevant or necessary to resolve fee-related issues if the claimant has expressly consented on a Form SSA-3288 or other written consent that meets the requirements of GN 03305.003. For information on assignment of direct payment of fees, including the roles and responsibilities of a POC, see GN 03920.021.

1. b. 

   Add a special message to the Master Beneficiary Record (MBR) that we may authorize an additional fee based on the other claim.

2. c. 

   Advise the other PC, by special message, of the amount of the fee authorized under the fee agreement based on the primary claim.

   If there are no past-due benefits under the primary claim, do not disapprove the otherwise valid fee agreement on this basis; remember that past-due benefits may flow from the other claim.

In dual entitlement claims with a fee agreement, authorize a fee up to the maximum allowed under the fee agreement, taking into consideration any fee authorized based on the past-due benefits from the primary claim.

When we determine that we applied a lower fee cap than we should have applied (such as in GN 03940.041A Example 1 in this section) and the representative, or the entity if there was a valid assignment as per GN 03920.021, received direct payment of the fee from the claimant's withheld past-due benefits, take the following actions:

1. a. 

   Compute the correct fee amount.

2. b. 

   Pay the representative or entity the additional fee amount (not to exceed 25 percent of past-due benefits) minus any additional user fee, as appropriate following the policy in GN 03920.019, unless the excess fee withholding has already been released to the claimant (and/or auxiliaries).

3. c. 

   Send correct fee language to all parties (the representative, the claimant, and the decision maker). Include administrative review rights in the notice. Include failure to withhold language if the remaining past-due benefits withheld have already been released to the claimant (and/or auxiliaries). See GN 03920.055B.

When we determine that we applied a higher fee cap than should have been applied (such as in GN 03940.041A Example 2 in this section) and the representative, or the entity if there was a valid assignment, received direct payment of the fee from the claimant's withheld past-due benefits, take the following actions:

1. a. 

   Compute the correct fee amount.

2. b. 

   Compute the user fee (if applicable) based on the correct fee amount. The beneficiary is entitled to receive any excess assessment that was withheld from the representative’s or entity's direct payment. Input a Payment History Update System (PHUS) correction with a negative 076 event to annotate the proper user fee amount.

3. c. 

   Send corrected fee language to all parties (representative, claimant, and the decision maker). Include administrative review rights in the notice.

4. d. 

   Refer to GN 03970.025, Field Office (FO) and Processing Center (PC) Action on Direct Payment Error Fee Violations, and GN 03920.051 and GN 03920.052B for guidance on recovering the excess fee payment and refunding money to the claimant.

In Title XVI only claims, after completing the procedures described in GN 03940.010, take the following actions:

1. a. 

   Ensure that the representative data is correctly posted in the Registration, Appointment, and Services for Representatives (RASR) application and to the UATH (see MS 00302.013) screen and the UFEE screen (see MS 00302.014).

   NOTE: If there is more than one representative, code the "Multiple Authorized Representatives" field on the UFEE screen "Y." See MS 00302.014

2. b. 

   Check RASR to determine if a representative has not waived their fee and is eligible for direct payment of the fee (see GN 03920.016. Refer to GN 03920.018 for specific policy on direct payment to non-attorney representatives). For non-attorney representatives, if not previously recorded, record the following based on the type of case being processed on the Development Worksheet or MDW screen:

   ISSUE — EDPNA (stands for "eligible for direct payment non-attorney")

   REC — Input date of verification

   REMARKS — Based on information on the list, type "Elgble for Direct Pymnt" (or "EDP"), "Not elgble for direct pymnt" (or "NEDP"), or "Not on list."

   If a representative has validly assigned direct payment of their authorized fee to an entity as per GN 03920.021, determine if that entity is eligible to receive direct payment of fees by querying RASR to ensure that the entity has registered and not been placed on the Ineligible for Direct Payment Entity list.

3. c. 

   If the non-attorney stated they are eligible for direct payment, but they are not, advise the representative that we cannot make direct payment. Model language to include in the fee notice follows:

   You advised your client, (Beneficiary's name), and indicated on the signed Form SSA-1696 (Claimant's Appointment of a Representative) [or written notice of appointment (only for appointments established before December 9, 2024, see GN 03910.040A.2. NOTE)] that you are eligible for direct payment. Under Titles II and XVI of the Social Security Act, certain non-attorney representatives have the option to have their authorized representatives' fees withheld and paid directly from a claimant's past-due benefits. However, [Select the appropriate conclusion]

   • •

     you do not meet all the qualifications to be eligible for direct payment,

   • •

     you did not meet all the qualifications to be eligible for direct payment until after we effectuated the favorable decision on your client's claim, or

   • •

     you failed to maintain your eligibility for direct payment.

   Accordingly, we will not pay any authorized fee directly to you. You must look to the claimant for payment of the fee authorized in this case.

   Refer to GN 03920.018E.2. for possible referral to the Office of the General Counsel.

4. d. 

   Ensure that the fee agreement is associated with the claim(s) file.

Take the actions listed below to process a fee agreement.

1. a. 

   Approve or disapprove the fee agreement using the instructions in GN 03940.003.

2. b. 

   Determine if automated or manual fee processing applies. See GN 03940.046C.

   In most cases, when the fee agreement is approved, the Supplemental Security Record (SSR) automatically computes the Title XVI fee amount and issues a fee authorization notice. Refer to SM 01308.100, MS 00302.012, MS 00302.013, and MS 00302.014 for information on automated representative fee processing.

   If the fee agreement is approved and the case is excluded from automated processing (see GN 03940.046C.2), follow the procedures in GN 03940.046A.1.c through GN 03940.046A.1.g in this section.

3. c. 

   Determine the amount of the retroactive payment by examining the payment history (PMTH segment), underpayment information (MPMT segment), and computation history (CMPH segment) on the SSR. (See SM 01311.025 PMTH (Payment History), SM 01601.865 Miscellaneous Payment Data (MPMT), and SM 01601.790 Computation History — CMPH.)

4. d. 

   Reduce the Title XVI retroactive payment amount by any benefits and/or payments that are not considered past-due benefits for representative fee purposes. (See GN 03920.031 and GN 03940.007 for information on past-due benefits). The result is the title XVI past-due benefit amount for the fee computation.

5. e. 

   Authorize a fee that equals the least of:

   • •

     25 percent of the Title XVI past-due benefits;

   • •

     the percentage of past-due benefits or the flat fee amount specified in the fee agreement; or

   • •

     the applicable specified dollar amount of the fee cap indicated in GN 03940.003B.3.

     NOTE: Refer to GN 03940.052 for policy on calculating the representative's fee in Supplemental Secuirty Income (SSI) couple's cases.

6. f. 

   If the representative has not waived their fee and is eligible for direct fee payment, refer to GN 03940.046D for procedures to record the fee and the assessment on the SSR.

7. g. 

   Prepare and issue a title XVI Fee Agreement Notice if a manual notice is required (see GN 03940.008 and GN 03940.055 for notice policy and procedures).

If you are the decision maker (see GN 03960.001D.4) and believe a request for administrative review of the authorized fee amount is appropriate (see GN 03940.001E), you must file the request within 15 days of the date of the notice. See GN 03960.040 for information on requesting administrative review.

Verify that the OHO or OAO decision maker (see GN 03940.002C and D) approved the fee agreement by looking for a Form HA-L15 (Fee Agreement Approval) at the hearing level, a Determination of Fee Agreement in the AC Decision, or other fee agreement determination document.

If the fee agreement determination is correct and manual processing is required (see GN 03940.046C), go to GN 03940.046A.1.c.

If the decision maker did not make a determination, see GN 03940.046E.

If you believe the decision maker incorrectly approved the fee agreement, see GN 03940.046F.

At the initial and reconsideration level, document the fee agreement determination on an SSA-553 or report of contact (e.g., RPCO). See GN 03905.065B.1 for sample language.

The decision maker documents the fee agreement determination on a Form HA-L15 (Fee Agreement Approval) at the hearing level, a Determination of Fee Agreement in the Appeals Council Decision, or other fee agreement determination document.

In most Title XVI only cases, the SSR automatically computes a representative's fee and issues the fee notice (refer to SM 01308.100). If the representative has not waived a fee and is eligible for direct payment, the SSR also calculates and deducts the user fee and pays the fee to the representative or eligible entity if there is a valid assignment (GN 03920.021). The cases that are excepted from the automated process are listed in GN 03940.046C.2.

Refer to SM 01308.100, MS 00302.012, MS 00302.013, and MS 00302.014 for information on automated representative fee processing.

The fee calculation and direct payment of an authorized fee are not fully automated in the following situations:

• •

  There is a prior overpayment (i.e., overpayment for a period outside the award period) that is greater than 75 percent of past-due benefits (see GN 03940.046D.1);

• •

  Interim assistance reimbursement (IAR) cases with an overpayment for a prior period of eligibility where the sum of the IAR payment and the overpayment is greater than 75 percent of past-due benefits (see GN 03940.046D.1);

• •

  The claimant has multiple representatives, unless all representatives have assigned direct payment of their fee to the same entity (see GN 03940.046D.2);

• •

  An eligible spouse’s past-due benefits are included in authorizing the claimant's representative's fee (see GN 03940.046D.2); or

• •

  Start dated records (regardless of whether the start date month is earlier or later than the beginning of the past-due benefits period ), force pay records, force due records, and post eligibility cases (i.e., disability cessation appeals) (see GN 03940.046D.5).

Manual processing is required when there is an overpayment for a prior period of eligibility that is greater than 75 percent of the past-due benefits. It is also necessary in interim assistance reimbursement (IAR) cases with an overpayment for a prior period of eligibility where the sum of the IAR payment and the overpayment is greater than 75 percent of past-due benefits. Refer to SM 01901.950C.3 for procedures in these situations:

In addition, if the claim also involves one of the exceptions to automated processing listed in GN 03940.046C.2., refer to the pertinent procedures in GN 03940.046D.2 through GN 03940.046D.6.

If all representatives are from the same entity and have all assigned direct payment of their fees to the same entity, it is not necessary to manually input any information, as payment to the entity will be automated. However, if there are multiple representatives, and at least one did not assign direct payment of their fee to an entity or all did not assign to the same entity, take these additional actions:

• •

  Ensure that on the Modernized SSI Claims System (MSSICS) UFEE screen, item 3, Multiple Authorized Representatives, is coded “Y.”

• •

  In item 6, Fee Status, on the MSSICS UFEE screen, select “8,” “Manually computed fee agreement.” (See MS 00302.014.)

• •

  Manually calculate the fee and the user fee, and divide the fee and the user fee between/among the representatives. If all the representatives have validly assigned direct payment of their fee to the same entity, do not divide the fee and user fee. For multiple representatives see GN 03920.050D.2 and GN 03920.019E.

• •

  Enter the representative fee and user fee on the One-Time Payment Fees (UPOF) screen (see MSOM BUSSR 003.025).

• •

  Issue a manual fee notice from the Document Processing System (DPS) to the claimant, with a copy to the representative, to explain the fee authorization and payment actions (see GN 03940.070).

Refer to GN 03940.046D.6 for the order in which to take these actions.

Refer to GN 03940.052 for the policy for calculating past-due benefits in an SSI couple’s case. The system will calculate the portion of the authorized fee that is based on the eligible individual's past-due benefits; however, when including the eligible spouse's past-due benefits increases the amount of the authorized fee, take these actions:

• •

  In item 6, Fee Status, on the MSSICS UFEE screen, select “8,” “Manually computed fee agreement.” (See MMS 00302.014.)

• •

  Manually calculate the additional fee to authorize based on the eligible spouse's past-due benefits, ensuring that the total fee does not exceed the maximum fee based on the fee agreement.

• •

  Withhold from the eligible spouse's past-due benefits the amount calculated above and calculate the user fee, if applicable.

• •

  Enter the representative fee and user fee on the One-Time Payment Fees (UPOF) screen (see MSOM BUSSR 003.025).

• •

  Issue a manual notice from DPS to the eligible spouse, with a copy to the representative, to explain the fee authorization and payment actions (see GN 03940.070).

  NOTE: If there is a valid assignment of direct payment of a representative's fee to an entity, the entity's POC may need to review fee-related information to resolve fee-related issues. However, do not send a copy of the award notice or other protected information (e.g. claimant or eligible spouse information) to the entity’s POC unless it is the minimum amount of information necessary for the POC to review to resolve fee-related issues. Only disclose information that is not relevant or necessary to resolve fee-related issues if the eligible spouse has expressly consented on a Form SSA-3288 or other written consent that meets the requirements of GN 03305.003.

Refer to GN 03940.046D.6 for the order in which to take these actions.

If the current SSR record has a start date (regardless of whether the start date month is earlier or later than the beginning of the past-due period subject to fees) or is a force pay record, a force due record, or a post eligibility case (i.e., disability cessation appeal), the SSI system is not programmed to compute the Title XVI portion of the fee. Therefore, the Title XVI portion of the fee must be computed and paid manually. In any of these situations, take these actions:

• •

  Follow the instructions in MS 00302.013.

• •

  Enter the representative fee and user fee on the One-Time Payment Fees (UPOF) screen (see MSOM BUSSR 003.025).

• •

  Issue a manual notice from DPS to the claimant, with a copy to the representative, to explain the fee authorization and payment actions (see GN 03940.055).

When a representative who is eligible for direct payment states the representative will not charge a fee, send a manual notice to the representative to advise the representative how the waiver affects our action. A notice is available in DPS titled, “Atty Fee-Representative Waives Fee.

When it is necessary to manually calculate the title XVI fee amount (see GN 03940.046C.2) and the representative has not waived a fee and is eligible for direct fee payment, follow the order below to process the fee action.

Refer to SM 01901.950 One Time Payment (OTP) Processing for Direct Payment for Manual Fee Agreements and Fee Petitions for Appointed Representatives.

If the OHO or OAO decision maker approved the fee agreement but you believe the approval is incorrect because the fee agreement either does not meet the requirements of the Social Security Act or an exception applies (see GN 03940.003), take the following actions:

Diary the case for 45 days (or diary subject to local discretion) for OHO or OAO's action on the fee agreement.

If you do not receive an email from OHO or OAO regarding the action taken, and the determination is not in the claim(s) file, after the diary matures:

• •

  Follow up with the RO or AFB.

• •

  Explain that you have not received information regarding your request for OHO's or OAO's action on the incorrectly approved fee agreement.

• •

  Diary the case for 15 days.

• •

  If you need to follow-up at the end of the second diary period, re-contact the RO or the AFB by e-mail.

If OHO or OAO reverses the fee agreement determination, OHO or OAO will upload a copy of the action to the A section of the claim(s) and notify the servicing FO by email file. If there is no associated electronic record, OHO or OAO will email a copy of the action to the servicing FO.

If OHO or OAO affirms the fee agreement determination, OHO or OAO will advise the FO by email to process the representative's fee under the fee agreement process.

Before proceeding to the steps in GN 03940.050B, ensure that all the following events have occurred:

• •

  The representative information is correctly posted to the Supplemental Security Record (SSR) using the Direct SSR Authorized Representative (UATH) screen, and the Representative Fee Update Data (UFEE) screen (MSOM BUSSR 002.013, and MSOM BUSSR 002.014, respectively).

• •

  The Title XVI claim was paid.

• •

  The decision maker (see GN 03940.002) approved the fee agreement.

• •

  The claimant, if mentally incapable, has a payee.

• •

  The Title XVI CS knows the amount of the Title II portion of the fee.

If the claim was decided at the initial or reconsideration level and the Title II decision maker has not yet made a determination on the fee agreement, diary the claim for 45 days for the fee agreement determination.

Do not delay effectuating payment. Code the Fee Situation on the UFEE screen as “1 = Unresolved Fee Agreement.” (See MSOM BUSSR 002.014)

If the Title II CS or OHO or OAO decision makers approved the fee agreement, and the approval appears correct, determine whether you have information regarding the Title II fee amount. Go to GN 03940.050A.4 Title II Fee Amount Unknown, or GN 03940.050B Procedure - Title II Fee Amount Known, as appropriate.

If the Title II portion of the fee, including the auxiliary beneficiary's amount is unknown:

• •

  Leave the fee unresolved and diary the claim for 45 days; and

• •

  Send an interim notice advising the claimant and representative that we are deferring the fee amount determination until we complete the pending Title II claim, and that upon completing the Title II claim actions, we will send another notice advising them of the fee authorized under Title XVI.

• •

  The Fee Status is resolved on the UFEE screen (see MSOM BUSSR 002.014),

• •

  The SSR reflects a field office (FO), Office of Hearings Operations (OHO), or Office of Appellate Operations (OAO) approval of the fee agreement, and

• •

  The Title II portion of the fee is unknown.

If there are multiple representatives, and at least one did not assign direct payment of their fee to an entity or all did not assign to the same entity, prepare a manual notice. However, if there are multiple representatives who have all assigned direct payment of their fee to the same entity, the notice and payment is automated.  

The authorized fee is the combined total of the Title II portion of the fee (i.e., wage earner's and any auxiliary beneficiary’s), and the Title XVI portion of the fee. Title II offset is always applied, unless Title XVI is not payable in the offset period per GN 02610.018. Thus, if the Title II claim is effectuated first (i.e., Title II continuing monthly benefits are paid first), all retroactive Title II benefits are still withheld until Title XVI has been paid and the Title II offset amount is determined.

In most concurrent fee agreement cases, FOs can make inputs to the SSR that will trigger the automated computation of the Title XVI fee and issuance of a fee notice to the claimant and representative. Also, when there are past-due benefits available for direct payment and the representative has not waived a fee and is eligible for direct payment, in many fee agreement cases the SSR will compute the fee assessment and trigger direct payment to the representative or the eligible entity if there is a valid assignment.

To determine whether a case is excluded from automated processing, refer to GN 03940.050C. Once you determine that the case is excluded from the automated processing, use the following steps to process the fee agreement in concurrent Title II and Title XVI claims:

In most concurrent Title II and Title XVI cases, the computations and notices for initial claims involving a fee agreement and direct payment of the authorized fee are fully automated.

The fee calculation and direct payment of an approved fee are not fully automated in the following situations:

• •

  There is a prior overpayment (i.e., overpayment for a period outside the award period) that is greater than 75 percent of past-due benefits. (See GN 03940.050C.2)

• •

  Interim assistance reimbursement (IAR) cases with an overpayment for a prior period of eligibility where the sum of the IAR payment and the overpayment is greater than 75 percent of past-due benefits. (See GN 03940.050C.2)

• •

  The claimant has multiple representatives, unless all representatives have assigned direct payment of their fee to the same entity. (See GN 03920.050D.2);

• •

  An eligible spouse's past-due benefits are included in authorizing the claimant's representative's fee. (See GN 03940.052); or

• •

  Start dated records (regardless if the start date month is earlier or later than the beginning of the past-due period subject to fees), force pay records, force due records, and post eligibility cases (i.e., disability cessation appeals).

After determining the Title XVI portion of the fee to authorize based on the Title XVI past-due benefits, in conjunction with the Title II fee, follow the procedures in GN 03940.050.C.2 or 3 to make direct fee payment in the above situations.

Refer to identified section of SM 01901.950C.4 for procedures in these situations:

In addition, if the claim also involves another exception to automated process listed in GN 03940.050C.1, refer to the procedures in GN 03940.050C.3.

Follow either of the next two subsections, when it is necessary to manually calculate the Title XVI fee amount, and the representative, or entity if there is a valid assignment, is eligible for direct fee payment. If the Title II fee is equal to or greater than the applicable specified dollar amount of the fee cap as indicated in GN 03940.003B.3 (or the maximum fee based on the fee agreement), go to GN 03940.050C.3.a. If the Title II fee is less than the specified dollar amount of the fee cap (or maximum fee based on the fee agreement), go to GN 03940.050C.3.b.

If the issues of mental capability or payee development are pending when you effectuate the favorable decision and you are paying the claimant current benefits directly pending resolution of the capability issue or representative payee selection, take these actions:

• •

  Review the fee agreement to determine that it meets the statutory requirements of the Act for approval and is not otherwise excepted (see GN 03940.003).

  EXCEPTION: Do not approve the fee agreement for claims already decided by the Title II CS or decided at the hearing or Appeals Council review level. You are not the decision maker at these levels.

• •

  Document your determination on a Form SSA-553 (Special Determination).

• •

  Complete the representative data in the “AUTH Segment” on the supplemental security record (SSR). On the UFEE screen (see MS 00302.014), for the FEE SITUATION field, select "1,” Unresolved Fee Agreement/Petition. If the representative has not waived a fee and is eligible for direct payment, make sure direct payment is indicated on the SSR.

• •

  Prepare a manual notice advising the parties that you will defer authorizing a fee under the fee agreement process until after resolution of the capability issue. If the representative has not waived a fee and is eligible for direct payment or there is an entity with a valid assignment, also advise that you are withholding past-due benefits for possible direct payment to the representative or to the entity.

If you have resolved the issues of mental capability and selection of a representative payee, take these actions:

• •

  Change the FEE SITUATION status to “2,” “Resolved Fee Agreement.”

• •

  Authorize a fee under the fee agreement process following the instructions in GN 03940.046A for title XVI only claims and GN 03940.050C in concurrent claims.

• •

  When the fee is computed, the system will issue a notice advising the parties (i.e., the representative and the claimant,) of the authorized fee and of the right to request administrative review. The system will also make direct payment to the representative, if the representative is eligible for direct payment, or to the eligible entity if there is a valid assignment, and include direct payment information in the fee notice.

• •

  Notify the decision maker of the authorized fee by email, if the decision maker has requested notification.

  NOTE: The Supplemental Security Income (SSI) automated notice system will send a copy of the notice to the decision maker if the notice is automated.

If EI is represented in connection with EI's individual claim and we issue a favorable decision, we will approve the fee agreement if all conditions are met and no exceptions apply, and we will use EI's past-due benefits to calculate EI's representative's fee. If EI is represented and we deny the claim, we will not act on the fee agreement.

If ES is represented in connection with ES's individual claim and we issue a favorable decision, we will approve the fee agreement if all conditions are met and no exceptions apply. We use ES's past-due benefits to calculate ES's representative's fee. In addition, regardless of whether EI signed ES's representative's fee agreement, if ES's representative's efforts result in:

• •

  an increase in EI's benefits, or

• •

  EI's eligibility because of the change in the income/resource requirement;

We will use EI's additional benefits to calculate ES's past-due benefits to determine ES's representative's fee. In this situation, ES's representative could be entitled to a fee of the lesser of the applicable specified dollar amount of the fee cap as indicated in GN 03940.003B.3 or 25 percent of this total (EI's additional benefits and ES's past-due benefits).

If ES's eligibility results in an increase in EI's benefits, SSA will:

• •

  use the difference between the amount EI already received and the additional benefits EI receives because of ES's eligibility (effective with the date of ES's eligibility); and

• •

  add that amount to ES's past-due benefits amount to arrive at the total amount of past-due benefits we must use to authorize ES's representative's fee.

If ES's eligibility does not result in EI's eligibility or an increase in EI's benefits, ES's past-due benefits will be equal to the difference in the amount due to the couple and the amount already paid to EI for the months included in ES's past-due benefits.

EXAMPLE: We paid EI the full individual federal benefit rate (FBR) of $943.00 for 04/24. ES appoints a representative and files for SSI. ES is found eligible and the couple is due the full couple FBR of $1,415.00 for 04/24. We will only pay the difference of $472.00 to ES for 04/24. Therefore, SSA will only include $472.00 for 04/24 in the SSI past-due benefits calculation to determine ES's representative's fee, not 1/2 the couple's FBR.

If we include EI's additional past-due benefits in authorizing ES;s representative's fee and if ES's representative is eligible for direct payment, We will withhold up to 25 percent of EI's additional past-due benefits for direct payment to the representative or to an eligible entity if there is a valid assignment (see GN 03920.021).

The appropriate decision maker approves or disapproves the fee agreement. If approved:

1. a. 

   Determine the amount of the total monthly payment due to the couple by examining the payment and computation segments on the SSID for each month in ES's retroactive period (i.e., through the month of effectuation).

2. b. 

   Reduce the total payment amount by any benefits and/or payments that are not considered past-due benefits for representative fee purposes (see GN 03940.007B).

3. c. 

   Subtract the SSI payment that EI has already received from the couple payment amount for the corresponding months to determine if there are past-due benefits.

4. d. 

   If the result of step 3 in GN 03940.052C.2.c equals zero (there are no past-due benefits), disapprove the fee agreement. If the result of step 3 of GN 03940.052C.2.c is greater than zero, authorize a fee equal to the least of:

   • •

     25 percent of the couple's SSI past-due benefits;

   • •

     the percentage of past-due benefits or the flat fee amount specified in the fee agreement (if the percentage is less than 25 percent of past-due benefits or is a flat fee less than the specified dollar amount of the fee cap as indicated in GN 03940.003B.3); or

   • •

     the specified dollar amount of the fee cap as indicated in GN 03940.003B.3.

5. e. 

   Prepare and issue the Title XVI Fee Agreement Notice.

   NOTE: If there is a valid assignment of direct payment of a representative’s fee to an entity, do not send a copy of the award notice or other protected information (e.g., claimant information) to the entity’s point of contact (POC) unless the information included is the minimum amount of information necessary for the POC to review to resolve fee-related issues. For information that is not relevant or necessary to resolving fee-related issues, only disclose such information if the claimant has expressly consented on a Form SSA-3288 or other written consent that meets the requirements of GN 03305.003. For information on assignment of direct payment of fees, including the roles and responsibilities of a POC, see GN 03920.021.

If you are the decision maker and believe a request for administrative review of the authorized fee is appropriate (see GN 03940.001E.), you must file the request within 15 days of the date of the notice. Also see GN 03960.040 for information regarding filing for administrative review.

ES's representative's fee is the combined total of the Title II portion of the fee (i.e., wage earner's and any auxiliary's), and the Title XVI portion of the fee. Follow the steps below to process an approved fee agreement in concurrent Titles II and XVI claims.

Bob (AI) has been receiving Title II and Title XVI SSI benefits for several years. In 2021, Bob's Title II benefits are $499.00 per month and Bob's SSI payments are $195.00 per month.

Bob's spouse, Jane, files for SSI only on 03/07/21. Jane appoints a representative, who files a fee agreement. On 10/20/21, the Administrative Law Judge (ALJ) finds Jane disabled as of 03/07/21 and approves the representative’s fee agreement. After a PERC (pre-effectuation review contact), Jane receives the SSI retroactive payment on 11/22/21. Because of Jane's eligibility, Bob receives an additional Title XVI retroactive payment for 04/21 - 11/21 (8 months).

Determine the representative's fee resulting from Jane's SSI eligibility by following steps a. through d. in GN 03940.052C.1. This is the fee we may authorize to the representative Jane appointed.

• •

  The couple's total SSI benefits are $4,256.00, computed on the SSR as follows:

  $1,191.00  (Couple FBR)

   - $479.00 (Countable Income (Bob's Title II of $499.00 - $20.00))

   $712.00 (Couple payment amount x 8 months = $5,696.00)

• •

  Bob has already received $1,560.00 ($195.00 x 8) in SSI benefits for 04/21 -11/21.

   $5,696.00 (Couple's total benefits)

  -$1,560.00 (Amount Bob already received)

   $4,136.00 (Couple's actual past-due benefits amount)

• •

  Because there are past-due benefits resulting from Jane's eligibility for SSI, and the fee agreement provided for a fee of the lesser of 25 percent of past-due benefits or the specified dollar amount of the fee cap (-$7,200.00 at the time), the fee in this case is $1,034.00, or 25 percent of $4,136.00.

Jane's eligibility results in additional retroactive benefits to the couple, and SSA uses the couple's additional past-due benefits to calculate the representative's fee.

Jim, age 65, and Jim's spouse Mary, a disabled spouse, age 60, file for SSI on 01/10/22. Jim already receives Title II benefits of $605.00 per month. Jim's Title II benefit increases to $623.00 per month in 2023.

Mary is not insured or entitled to any Title II benefits. Jim will not be eligible for SSI unless Mary's SSI claim is approved. Mary appoints a representative to assist with the Title XVI claim, and the representative submits a fee agreement. On 09/10/22, the ALJ finds Mary disabled as of 01/10/22 and approves the representative’s fee agreement. Both Mary and Jim are now eligible for SSI and their retroactive SSI payments are issued on 10/25/23.

Determine the representative's fee based on Mary's fee agreement with the representative by following steps GN 03940.052C.1.a through GN 03940.052C.1.d:

• •

  The couple's maximum potential benefits are $8,161.00 ($4,080.50 for Jim and $4,080.50 for Mary) in SSI benefits for 02/22 - 10/23, computed on the SSR as follows:

 $1,261.00 (Couple Federal Benefit Rate (FBR) for 2022)

 -$585.00  (Countable Income (Jim's Title II of $605.00 - $20.00))

 $676.00 (Couple Payment Amount for 02/22 - 12/22 ($676 x 11 = $7,436.00))

 $1,371.00 (Couple FBR for 2023)

-$  603.00  (Countable Income (Jim's title II of $623.00 - $20.00))

 $768.00 (Couple Payment Amount for 01/23 -10/23 ($768 x 10 = $7,680.00)

Therefore, the past-due benefits are $7,346.00 + $7,680.00 = $15,116.00.

• •

  All retroactive benefits are past-due benefits for representative fee purposes.

• •

  Jim was not previously eligible for SSI benefits; therefore, there is nothing to subtract from the past-due benefits amount.

• •

  Because there are past-due benefits and the fee agreement provided for a fee of the lesser of 25 percent of past-due benefits or the specified dollar amount of the fee cap indicated in GN 03940.003B.3, the fee in this case is $3,779 , or 25 percent of $15,116.00.

Mary's eligibility results in Jim's eligibility for SSI; therefore, we use the couple's past-due benefits to calculate Mary's representative's fee.

Nathan and Kate filed for SSI on 12/12/21. Kate also filed for Title II benefits. Nathan's SSI claim was approved and Nathan received the first SSI payment in 07/22. Nathan was represented and we authorized a fee to the representative based on an approved fee agreement. Nathan was paid the full FBR as an individual because Kate's initial claim was denied and the couple had no Federal countable income. Nathan was paid $637.00 per month from 01/22 to 12/22, and $674 per month from 01/23 to 06/23.

On 06/02/23, the ALJ issued a favorable Title II and Title XVI decision finding Kate disabled as of 01/03/21. In June 2023, Kate received the SSI retroactive payment of $5,850.00 (the difference between the couple's FBR and the individual FBR for 01/22 to 06/23). Kate received the first recurring SSI payment in July 2023.

Kate's Title II waiting period was 02/21-06/21. Kate received the first monthly Title II check in August 2023, a current monthly amount (CMA) of $358.00. We withheld Title II retroactive benefits of $8,379.00 for the months of 07/21 - 06/23 (benefits that would have been paid in 08/21 - 07/23) pending windfall offset and representative fee adjustment. Kate’s Title II monthly benefit amount (MBA) rates are shown on the Master Beneficiary Record (MBR) as $337.00 for 7/21-11/21, $349.00 for 12/21-11/22, and $358.00 for 12/22 and continuing.

Determine the representative's fee based on Kate's fee agreement with the representative by following steps a. through e. in GN 03940.052C.2:

• •

  The representative fee based on Title II past-due benefits is $2,094.75 according to the APPREP data line on the MBR. we may authorize total representative fees based on Title II and Title XVI past due benefits in an amount not to exceed the lesser of 25% of past due benefits or the specified dollar cap as indicated in GN 03940.003B.3.

• •

  Determine Kate's SSI past-due benefits for the fee computation on a month-by-month basis. Per GN 03940.052C.2.c, determine the amount of Title XVI benefits the couple would have received for each month included in Kate's retroactive payment, if Kate's retroactive Title II benefits had been paid first and when due.

• •

  Subtract the actual amount of SSI that SSA has already paid to Nathan for the same months.

See summary calculation in the table below:

$1,261.00 (Couple FBR for 2008)

 -$329.00 (Kate's Title II rate of $349.00 - 20.00)

  *$932.00 (Amount couple would have been due for each month 01/22 - 12/22)

$1,371.00 (Couple FBR for 2023)

 -$338.00 (Kate's Title II rate of $358.00 - 20.00)

**$1,033.00 (Amount couple would have been due for each month 01/23 - 06/23

• •

  If the “Amount Couple Due” each month is MORE than the amount Nathan received that month, the difference is the SSI past-due benefits for that month. If the “Amount Couple Due” each month is LESS than the amount Nathan received each month, then there are no past-due benefits for that month. In this case, there are no past-due benefits. Therefore, we cannot authorize an additional fee to Kate's representative for services provided in connection with Kate's SSI claim.

Sam and Charlotte filed for SSI on 05/30/22. Charlotte also filed for Title II benefits. Charlotte appointed a representative, who submitted a fee agreement. The fee agreement called for a fee of the lesser of 25% of past-due benefits or the specified dollar cap at the time of $7,200.00. Sam's SSI claim was approved and Sam began receiving SSI payments in 06/22. Sam was paid the full FBR for an individual for 06/22 - 08/23 because Charlotte's initial claim was denied.

In July 2023, the ALJ issued a favorable Title II and Title XVI decision finding Charlotte disabled as of 02/10/22, and approved the fee agreement. Charlotte received the retroactive SSI payment of $5,886.00 in August 2023 (the difference between the couple's FBR and the individual's FBR). Charlotte's Title II waiting period was 03/22 - 07/22. Charlotte received the first monthly Title II check in September 2023, a CMA of $509.00. SSA withheld Title II retroactive benefits of $6,064.00 for the months of 08/22 - 07/23 (benefits that would have been paid in 09/22 - 08/23) pending windfall offset and representative fee adjustment. Charlotte's Title II MBA rates are shown on the MBR as $498.00 for 08/22 - 11/2, and $509.00 for 12/22 and continuing.

Determine the representative's fee based on Charlotte's fee agreement with the representative by following steps a. through e. in GN 03940.052C.2:

• •

  The representative fee based on Title II past-due benefits is $1,516.00 according to the amount on the APPREP data line on the MBR. Based on the fee agreement between Charlotte and the representative, and based on the statutory limits outlined in GN 03940.003B.3, we may authorize total representative fees (based on Title II and Title XVI past due benefits) in an amount not to exceed the lesser of 25% of past due benefits or the specified dollar cap.

• •

  Determine Charlotte's SSI past-due benefits for the fee computation. Per GN 03940.052C.2.c, determine the amount the couple would have received for each month included in Charlotte's retroactive payment, if Charlotte's retroactive Title II benefits had been paid first and when due.

• •

  Subtract the actual amount of SSI that Sam has already been paid for the same months.

See summary calculation in the table below.

$1,261.00 (Couple FBR for 2022)

 - 0.00 (No Title II retro due for 06/22 - 10/22; no countable income)

*$1,261.00 (Amount couple due for 6/22 - 10/22)

$1,261.00 (Couple FBR for 2022)

- $478.00 (Charlotte's Title II rate of $498.00 - $20.00)

**$783.00 (Amount couple would have been due for 11/22 - 12/22)

$1,371.00 (Couple FBR for 2023)

 - $489.00 (Charlotte's Title II rate of $509.00 - $20.00)

***$882.00 (Amount couple would have been due for 01/23 - 08/23

• •

  If the “Amount Couple Due” for a month is MORE than what Sam received for that month, the difference is the SSI past-due benefit for that month. If the “Amount Couple Due” for a month is LESS than what Sam received for that month, then there are no past-due benefits for that month. Offset any negative amount for a month against any additional amounts due for other months in the withholding period to arrive at the past-due benefits. In this case, there are past-due benefits of $61.00.

• •

  Authorize a fee that is the lesser of:

  • –

    25 percent of the SSI past-due benefits (25 percent of $61.00 is $15.25)

    OR

  • –

    The dollar cap. To calculate the remaining representative fee we could authorize from Title XVI past-due benefits based on the dollar cap, subtract the Title II fee already authorized from the applicable dollar cap. In this example, the dollar cap at the time was $7,200.00 ($7,200.00 - $1,516.00= $5,684.00);

  Since $15.25 is less than $5,684.00, we will authorize a fee of $15.25 based on Title XVI past-due benefits.

• •

  Prepare and issue the SSI Fee Agreement Notice authorizing a Title XVI fee of $15.25.

When we refer to SPS Online or Online, we are referring to the online input screens used to establish or update SPS payments that could not be automated.

By the fee payment date (i.e., the date we “make payment” or “pays all or part of the authorized fee”), we mean the date that the SPS or the Modernized Supplemental Security Income Claims System (MSSICS) sets the payment in PAID status.

• •

  When fee payment is initiated through the Modernized Claims System (MCS), the Manual Adjustment Credit and Award Processes (MADCAP) or MSSICS, the payment date (i.e., the date on which the payment is set in PAID status) is the day or the day after the input action is processed.

• •

  When fee payment is issued Online (manually) and set to PAID, the payment date is the day that payment is set in PAID status.

Because our personnel must input information instructing the system to make the direct payment, the payment date is not the date of the notice generated in connection with the fee payment, nor is it the date the Department of the Treasury issues the actual check.

By decision, we mean an initial or reconsidered determination or a decision made by an Administrative Law Judge or the Appeals Council.

When we directly pay a representative, or entity eligible for direct payment, based on an approved fee agreement, SPS:

• •

  applies the flat rate cap based on the annual cost of living adjustment in calculating the assessment and deducting it from the fee amount payable directly to the representative or entity, regardless of any user fee payments already on the SPS database (i.e., SPS will apply the flat rate cap based on the annual cost of living adjustment without regard to any earlier assessment); and

• •

  imposes the flat rate cap based on the annual cost of living adjustment on the first fee we pay directly to a representative or entity.

Except for situations identified in GN 03920.019F, no manual intervention is necessary to make direct payment and deduct the capped assessment for initial awards processed through MCS or MADCAP. MCS will automatically include the ATY016 paragraph in the claimant's notice and complete the fill-ins to explain the assessment. For claims processed through MADCAP, the universal text identifier (UTI) for the notice language is now ATY016. (Refer to NL 00720.050 for the fee notice assessment language.)

When SPS processes direct payment to a representative or entity in conjunction with a B or C award, it will withhold only the difference between the flat rate assessment cap based on the annual cost of living adjustment and the assessment paid amounts on the SPS database, not to exceed 6.3 percent of the fee amount paid from any auxiliary's past-due benefits. (Refer to GN 03940.053F.3 if we paid a portion of the fee from the primary claimant's past-due benefits before September 1, 2004.)

Refer to GN 03920.019F for situations in which the SPS-calculated assessment must be overridden because the automated SPS process will deduct an incorrect assessment amount.

It is necessary to include language in the fee notice to correctly reflect the assessment situation. When all fee actions on the claim are processed and we previously withheld an assessment on that claim, in the fee notice, use:

• •

  ATY066, when we previously assessed less than the flat rate cap based on the annual cost of living adjustment (see NL 00720.050); and

• •

  UTI ATY071, when we previously assessed the maximum fee (see NL 00720.050).

When we simultaneously pays two or more representatives based on an approved fee agreement, including in situations where one or more of the representatives validly assigns direct payment of their fee to an eligible entity or entities, the representatives share the fee equally. SPS divides the assessment by the number of representatives receiving direct fee payment and deducts that amount from each direct fee payment. Multiple representative cases must be processed by SPS Online. UTI ATY065 explains the assessment in the fee notice (see NL 00720.050). If all representatives assign their right to direct payment to the same entity, the user fee will be automatically deducted once from the payment to the entity. Manual processing will not be required.

EXAMPLE: We favorably decided the claim and approved the fee agreement signed by two representatives in the same firm. The claimant's past-due benefits totaled $10,800 and the fee under the approved agreement was $2,700. We authorized each representative to charge and collect $1,350 ($2,700 divided by 2). If the flat rate cap based on the annual cost of living adjustment is less than 6.3% of $2,700, the flat rate cap based on the annual cost of living adjustment applies. The representatives share the assessment equally (i.e., each receives one-half of the total direct payment amount less one-half of the assessment). We pay $1,350 less one half of the flat rate cap based on the annual cost of living adjustment to each representative. UTI ATY065 explains the assessment in the fee notice (see NL 00720.050). If both representatives had assigned direct payment to the same entity, we would automatically pay the entire amount to the entity less the user fee.

Some situations require manual intervention to override SPS's automated assessment calculation and deduction. These situations are identified in GN 03920.019F.

For DOFA cases, Claims Specialists (CS) follow existing procedures to process the case through MCS unless there is an MCS processing limitation.

If the claim cannot be processed using MCS, prepare an A101 or EF101. On the BCF/Remarks/Notice (BCRN) screen, enter the benefit continuity factors (BCF); the remark “Fee Agreement Case” and the name and address of the representative(s); and, in the NOTICE field, the MADCAP assessment paragraph for inclusion in the award notice. Refer to GN 03920.019F for the MADCAP paragraphs.

Follow existing procedures to process non-DOFA claims. If the claim requires special assessment processing (refer to GN 03920.019F), transfer the claim to the processing center (PC) for action using the modernized development worksheet (MDW).

Except in those situations identified in GN 03920.019F, SPS correctly calculates and deducts the assessment when we pay a fee. When the case is an initial award processed through MCS, with one representative or entity receiving direct payment, MCS automatically includes ATY016 in the notice. For initial award non-MCS cases that do not require override, request UTI ATY016.

When multiple representatives or entities who are eligible for direct payment are involved, input code “01” (multiple representatives) in the Attorney Payment Indicator field on the ATT screen through MACADE, which will generate a PCACS alert. This input is not necessary if there are multiple representatives who all assigned their right to direct payment to the same entity. When you receive the PCACS alert, but not before, process the payments in SPS (see SM 00834.200). SPS will divide the assessment equally between or among the representatives who receive direct payment.

Request UTI ATY065 to explain the assessment deduction.

Follow the procedure in GN 03940.053F.6 to override the SPS-calculated assessment. Manually calculate the assessment at 6.3% of the fee amount payable or the flat rate cap based on the annual cost of living adjustment, if lower. See GN 03920.019 for an explanation of the policy.

Request UTI ATY016 to explain the assessment deduction applied to the additional fee payment.

Follow the procedure in GN 03940.053F.6 to override the SPS-calculated assessment. Manually calculate the assessment at 6.3% of the fee amount payable or the flat rate cap based on the annual cost of living adjustment, if lower. See GN 03920.019F for an explanation of the policy.

Request UTI ATY016 to explain the assessment deduction.